Contemporary Canadian Federalism: Foundations, Traditions, Institutions 9781442687721

Table of contents :
Contents
Introduction: Intersecting Perspectives on Canadian Federalism
Part 1: Foundations and Traditions
1. The Idea of Federalism among the Founding Fathers of the United States and Canada
2. The Multiple Voices of the Federal Tradition and the Turmoil of Canadian Federalism
Part 2: Canadian Federalism
3. The Quebec–Canada Dynamic or the Negation of the Ideal of Federalism
4. Canada’s Federative Deficit
5. Federalism in Canada: Provinces and Minorities – Same Fight
6. On Not Finding Our Way: The Illusory Reform of the Canadian Federation
7. Conflicting National Identities and Federalism: A Quebec Perspective on the Change Occurring in Canada’s Political System
8. The Canadian Charter of Rights and Freedoms and Its Consequences for Political and Democratic Life and the Federal System
Part 3: Federal-Provincial and Intergovernmental Relations in Canada
9. Taking Stock of Asymmetrical Federalism in an Era of Exacerbated Centralization
10. Balance and Imbalance in the Division of Financial Resources
11. From the Canadian Social Union to the Federal Social Union of Canada, 1990–2006
12. Social Economy, Social Policy, and Federalism in Canada
13. Cities within the Canadian Intergovernmental System
Part 4: Federalism and Management of Diversity
14. Citizenship and Federalism in Canada: A Difficult Relationship
15. Towards Postcolonial Federalism? The Challenges of Aboriginal Self- Determination in the Canadian Context
16. Managing Diversity in Federal States: Conceptual Lenses and Comparative Perspectives
17. Asymmetries in Canada and Spain
Appendix: The Future of Quebec within the Canadian Federation
Contributors

Citation preview

Contemporary Canadian Federalism: Foundations, Traditions, Institutions Edited by Alain-G. Gagnon

This collection of essays by leading Quebec scholars presents an integrated attempt to explain Quebec’s traditions and interpretations of federalism from a variety of perspectives. First published in French in 2006 to much acclaim, the volume offers a multifaceted, updated analysis of the political stakes underlying Quebec-Canada relations. The book is organized into four parts. Part 1 provides comparative analysis of the foundations and traditions of federalism. Part 2 looks at federal-provincial dynamics in Canada, with emphasis on QuebecCanada relations, the federal deficit, relations between minorities and the central government, globalization, and the repercussions of the Canadian Charter of Rights and Freedoms on Canadian federalism. Part 3 provides detailed studies of federal-provincial and intergovernmental relations in Canada, focusing on power relations between the two levels of government, and further complications in federalprovincial relations brought on by fiscal imbalance, the social union, the social economy, and the emergence of municipalities as a political force. Part 4 addresses tensions between citizenship and federalism, and between First Nations and the central government, concluding with discussion of different conceptual and comparative approaches. Comprehensive, wide-ranging, and theoretically sophisticated, Contemporary Canadian Federalism fills a major gap in the literature and is required reading for understanding federal-provincial relations and governance in Canada. alain-g. gagnon is a professor and Canada Research Chair in the Depart­ment of Political Science at l’Université du Québec à Montréal.

This page intentionally left blank

Edited by Alain-G. Gagnon

Contemporary Canadian Federalism Foundations, Traditions, Institutions

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press Incorporated 2009 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-0-8020-9779-8 (cloth) ISBN 978-0-8020-9533-6 (paper) Printed on acid-free paper Library and Archives Canada Cataloguing in Publication Contemporary Canadian federalism : foundations, traditions, institutions /edited by Alain-G. Gagnon. Translation of: Le fédéralisme canadien contemporain. 2006. Includes bibliographical references. ISBN 978-0-8020-9779-8 (bound). ISBN 978-0-8020-9533-6 (pbk.) 1. Federal government – Canada.  2. Federal-provincial relations – Quebec (Province).  3. Multiculturalism – Political aspects – Canada.  4. Federal government. I. Gagnon, Alain-G. (Alain-Gustave), 1954– JL27.F4513 2009   320.4719049   C2008-908032-7

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Introduction: Intersecting Perspectives on Canadian Federalism  3 alain-g. gagnon Part 1: Foundations and Traditions  9 1 The Idea of Federalism among the Founding Fathers of the United States and Canada  11 marc chevrier 2 The Multiple Voices of the Federal Tradition and the Turmoil of Canadian Federalism  53 dimitrios karmis Part 2: Canadian Federalism  77 3 The Quebec–Canada Dynamic or the Negation of the Ideal of Federalism 81 françois rocher 4 Canada’s Federative Deficit 132 jean-françois caron, guy laforest, catherine vallièresroland 5 Federalism in Canada: Provinces and Minorities – Same Fight  163 andrée lajoie

vi  Contents   6 On Not Finding Our Way: The Illusory Reform of the Canadian Federation  187 michel seymour   7 Conflicting National Identities and Federalism: A Quebec Perspective on the Change Occurring in Canada’s Political System  213 joseph facal   8 The Canadian Charter of Rights and Freedoms and Its Consequences for Political and Democratic Life and the Federal System  224 josé woehrling Part 3: Federal-Provincial and Intergovernmental Relations in Canada  251   9 Taking Stock of Asymmetrical Federalism in an Era of Exacerbated Centralization  255 alain-g. gagnon 10 Balance and Imbalance in the Division of Financial Resources  273 alain noël 11 From the Canadian Social Union to the Federal Social Union of Canada, 1990–2006  303 sarah fortin 12 Social Economy, Social Policy, and Federalism in Canada  330 yves vaillancourt and luc thériault 13 Cities within the Canadian Intergovernmental System  358 luc turgeon

Contents  vii Part 4: Federalism and Management of Diversity  379 14 Citizenship and Federalism in Canada: A Difficult Relationship  381 linda cardinal and marie-joie brady 15 Towards Postcolonial Federalism? The Challenges of Aboriginal Self-Determination in the Canadian Context  405 martin papillon 16 Managing Diversity in Federal States: Conceptual Lenses and Comparative Perspectives 428 michael burgess 17 Asymmetries in Canada and Spain 441 kenneth mcroberts Appendix: The Future of Quebec within the Canadian Federation  469 benoît pelletier Contributors  483

This page intentionally left blank

CONTEMPORARY CANADIAN FEDERALISM: FOUNDATIONS, TRADITIONS, INSTITUTIONS

This page intentionally left blank

Introduction: Intersecting Perspectives on Canadian Federalism alain-g. gagnon

As it is practised in Canada, federalism has never been popular in Quebec. It is not that the Québécois are opposed to federalism in itself but rather that they refuse to accept the way it is implemented by Ottawa. There are two key notions at the heart of the Quebec interpretation: the autonomy of member-states and the non-subordination of powers between the two orders of government. The concept of federalism prevailing in Canada today, and according to which the central government rules over other orders of government, poses a problem for all political entities in Quebec City. Indeed, Quebec authorities challenge the principle of federalism according to which all agreements apply in the same way across the country with no regard for the national communities at the very foundation of the Canadian state. In Quebec the preferred concept is that of communitarian or multinational federalism, which acknowledges that national communities have key roles to play, both in terms of identification and as pillars of the federal state. A number of works have been published on this issue since the 1950s, but most have restricted their investigations to sharing of powers and/ or constitutional and legal issues. These works include the two volumes by Gil Rémillard: Le fédéralisme canadien: éléments constitutionnels de formation et d’évolution, published in 1980; and Le fédéralisme canadien: éléments constitutionnels de réalisations, published in 1985.1 In 1980, constitutional expert Gérald Beaudoin published a book entitled Le partage des pouvoirs, in which he took stock of Canadian federalism and the functioning of federal institutions; since then, the book has been revised and supplemented numerous times. The most recent version includes

4 Alain-G. Gagnon

an analysis of Canada’s Constitution; executive, legislative, and judicial powers; and constitutional conferences.2 Other authors have also made advances in this field, such as Richard Simeon and Ian Robinson in the context of the Macdonald Commission.3 However, there seems to be rather low participation by Quebec political scientists,4 who appear to have been ignored by directors when research programs were being determined. This has kept work by Quebec researchers in the shadows. Two remarkable works were published by Jacques-Yvan Morin and José Woehrling: the first was Les Constitutions du Canada et du Québec, du Régime français à nos jours (1992) and the second was Demain le Québec: Choix politiques et constitutionnels d’un pays en devenir (1994).5 These books shed crucial light on the possibility that Quebec could adopt its own constitution while taking into account power relationships over the long term. There is a major exception to the legal bias in existing work, and it deserves our attention: Maurice Lamontagne’s 1954 work entitled Le fédéralisme canadien: Évolution et problèmes (1954).6 While promoting Canadian federalism, the author innovated by proposing an inspired reading of the political economy. This interpretation was different from other works on the subject, and in some respects, Lamontagne opened up a productive avenue of research in the social sciences in Canada and Quebec. Other students of federalism delved more deeply into this area, for example, Christopher Armstrong, who wrote The Politics of Federalism: Ontario’s Relations with the Federal Government 1867–1942 (1981), and Garth Stevenson, author of Unfulfilled Union: Canadian Federalism and National Unity (2004 [1979]).7 In Quebec, few researchers have followed Lamontagne’s approach in exploring political economy; more take the legal approach. Quebec researchers have mainly focused on constitutional reforms in searching for an answer to Quebec’s claims within the Canadian federation. An illustration of this is the collective work edited by François Rocher, entitled Le bilan québécois du fédéralisme canadien (1992), in which the authors focus on jurisdictional disputes.8 The same year, philosopher Charles Taylor published Reconciling the Solitudes: Essays in Canadian Federalism and Nationalism, in which he shed strong light on identities in Canada and possible ways of taking national pluralism into account.9 Note also the edited study published in 1993 by Michael Burgess and Alain-G. Gagnon, Comparative Federalism and Federation: Compe­-

Introduction: Intersecting Perspectives  5

ting Traditions and Future Directions, in which the authors compared the customs of federalism and the various traditions underlying political debates in Canada and other well-known federations.10 In 1998 Beyond the Impasse: Toward Reconciliation11 was published. Edited by Guy Laforest and Roger Gibbins, it followed the failed referendum in October 1995 and contains a number of excellent studies on Quebec–Canada reconciliation and constitutional issues, although the collaborators never take Quebec’s secession seriously into account. There have also been works by political leaders. In 1995 Claude Ryan, leader of the Quebec Liberal Party from 1978 to 1982, aired his views in his book Regards sur le fédéralisme canadien; in 1999 Stéphane Dion shared his thoughts in Le pari de la franchise: Discours et écrits sur l’unité canadienne, and in 2001 Joseph Facal published Le déclin du fédéralisme canadien.12 There have been initiatives in specific areas since the early 1990s. For example, Guy Laforest’s important work, Trudeau et la fin d’un rêve canadien (1992),13 in which he discussed how the Canadian Charter of Rights and Freedoms has weakened federal practices in Canada. In 1996 Gilles Bourque and Jules Duchastel published L’identité fragmentée: Nation et citoyenneté dans les débats constitutionnels canadiens 1941–1992,14 in which they showed that the Charter increases the focus on ethnicity in social relations in Canada. Their interpretive work was continued and developed further in 2005 by Eugénie Brouillet in La négation de la nation: L’identité culturelle québécoise et le fédéralisme canadien,15 in which she took a new look at the founding compact from a legal point of view, thus merging two great interpretive traditions of federalism. Another major line of thought was developed in the late 1990s, with respect to the Canadian social union. In 1999, following an invitation launched by the Québec Ministère des Affaires intergouvernementales canadiennes, a number of specialists analysed the probable repercussions on Quebec of the central government’s proposed Canadian social union. The study identified new encroachments on the jurisdictions exclusive to the provinces.16 Other research is being done on the notion of multinational federalism as a possible way out of constitutional crises in countries that have a high degree of national diversity. In the context of the work of the Groupe de récherche sur les sociétés plurinationales (GRSP), Alain-G. Gagnon and James Tully edited Multinational Democracies (2001),17 a collective work in which the contributors delve into new forms of political associations for federal countries seeking legitimacy and stability, such

6 Alain-G. Gagnon

as Canada and Belgium, and countries on the road to federalization, such as Spain and the United Kingdom. An exhaustive analysis of Canadian federalism conducted by Quebec researchers has been anticipated for some time, but in fact, no major work has been published in French in the past decade. To fill this void, the Canada Research Chair in Quebec and Canadian Studies (RCQCS) at the Université du Québec à Montréal has held a number of symposiums between 2004 and 2006 in order to bring together the most advanced work on federalism in Canada. Thus, the present reference work opens its pages to Canada’s leading specialists on federalism while offering a multifaceted, updated reading of the political stakes underlying Quebec–Canada relations. The book is structured along four main lines. In Part 1 the contributors take a comparative approach to the foundations and traditions of federalism. In Part 2 they analyse federal–provincial dynamics in Canada, placing the accent on Quebec–Canada relations, the federal deficit, relations between minorities and the central government, globalization, and the Canadian Charter of Rights and Freedoms and its repercussions for Canadian federalism. The contributors to Part 3 provide detailed studies of federal– provincial and intergovernmental relations in Canada. At the heart of the discussions are a number of keys to interpreting the power relations between the two orders of government. This brings us to the realm of asymmetrical federalism, since federal–provincial relations in Canada have been further complicated by the fiscal imbalance, Canada’s social union, the social economy, and the emergence of a new player, the municipalities. Part 4 contains informative studies on managing diversity in federal states. The tensions between citizenship and federalism, and between First Nations and central government are explored in depth. The authors examine conceptual approaches and comparative perspectives in federal and federalizing states, such as Germany, the United States, Spain, and Canada. Researchers often tend to ignore political players. Given the issues covered here, we have considered it useful to publish an address by the Quebec minister responsible for relations between the Quebec government and other governments in Canada. Thus, in an appendix there is the address delivered by Minister Benoît Pelletier at the Université de Montreal on 1 October 2004 in the context of the inauguration of the work of the Canada Research Chair in Quebec and Canadian Studies.

Introduction: Intersecting Perspectives  7

In his speech, Minister Pelletier offers a political perspective on a panorama of Quebec’s primary claims and demands concerning both the jurisdictions shared by the central and Quebec governments, and the jurisdictions over which the different orders of government have sole competency. We believe that this volume delivers crucial advances in the work on federalism in Canada, and stands out because of the exhaustiveness, analytical approaches, and theoretical wealth of the various contributions. notes   1 Gil Rémillard, Le fédéralisme canadien: éléments constitutionnels de formation et d’évolution (Montreal: Québec Amérique, 1985), and Le fédéralisme canadien: éléments constitutionnels de réalisations (Montreal: Québec Amérique, 1985).   2 Gérald A. Beaudoin, Le partage des pouvoirs (Ottawa: University of Ottawa Press, 1980). For the most recent version, see Gérald A. Beaudoin and Pierre Thibault, La Constitution du Canada: Institutions, partage des pouvoirs – Charte canadienne des droits et libertés, 3rd ed. (Montreal: Wilson and Lafleur, 2004).   3 Richard Simeon and Ian Robinson, State, Society, and the Development of Canadian Federalism (Toronto: University of Toronto Press, 1990).   4 There are a few rare studies, such as one by political scientist Daniel Latouche, Canada and Quebec, Past and Future, for the Royal Commission on the Economic Union and Development Prospects for Canada (Ottawa: Supply and Services Canada, 1986).   5 Jacques-Yvan Morin and José Woehrling, Les Constitutions du Canada et du Québec, du Régime français à nos jours, (Montreal: Thémis, 1992); Demain le Québec. Choix politiques et constitutionnels d’un pays en devenir, (Quebec City: Septentrion, 1994).   6 Maurice Lamontagne, Le fédéralisme canadien: Évolution et problèmes (Quebec: Les presses de l’Université de Laval, 1954).   7 Christopher Armstrong, The Politics of Federalism: Ontario’s Relations with the Federal Government 1867–1942 (Toronto: University of Toronto Press, 1981); Garth Stevenson [1979], Unfulfilled Union: Canadian Federalism and National Unity, 4th ed. (Montreal and Kingston: McGill-Queen’s University Press, 2004).   8 François Rocher, Le bilan québécois du fédéralisme canadien (Montreal: VLB, 1992).

8 Alain-G. Gagnon   9 Charles Taylor, Reconciling the Solitudes: Essays in Canadian Federalism and Nationalism, ed. Guy Laforest (Quebec: Les presses de l’Université de Laval, 1992). 10 Michael Burgess and Alain-G. Gagnon, eds., Comparative Federalism and Federation: Competing Traditions and Future Directions (London and Toronto: Harvester and Wheatsheaf and University of Toronto Press, 1993). 11 Guy Laforest and Roger Gibbins, eds., Beyond the Impasse: Toward Reconciliation (Montreal: Institute for Research on Public Policy [IRPP], 1998). 12 Claude Ryan, Regards sur le fédéralisme canadien (Montreal: Boréal, 1995); Stéphane Dion, Le pari de la franchise: Discours et écrits sur l’unité canadienne (Montreal and Kingston: McGill-Queen’s University Press, 1999); Joseph Facal, Le déclin du fédéralisme canadien (Montreal: Boréal, 2001). 13 Guy Laforest, Trudeau et la fin d’un rêve canadien (Quebec: Septentrion, 1992). 14 Gilles Bourque and Jules Duchastel, with Victor Armony, L’identité fragmentée: Nation et citoyenneté dans les débats constitutionnels canadiens 1941–1992 (Montreal: Fides, 1996). 15 Eugénie Brouillet, La négation de la nation: L’identité culturelle québécoise et le fédéralisme canadien (Quebec: Septentrion, 2005). 16 Alan-G. Gagnon, ed., L’union sociale canadienne sans le Québec: Huit études sur l’entente cadre (Montreal: Saint-Martin, 2000). This work was published in English, jointly edited by Alain-G. Gagnon and Hugh Segal, as The Canadian Social Union without Quebec: Eight Critical Analyses (Montreal: IRPP, 2000). 17 Alain-G. Gagnon and James Tully, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001). See also Alain-G. Gagnon, Montserrat Guibernau, and François Rocher, eds., The Conditions of Diversity in Multinational Democracies (Montreal: IRPP and McGill-Queen’s University Press, 2003); Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007). For the GRSP’s work, see the Website: www.creqc. uqam.ca

Part One Foundations and Traditions

To understand Canadian federalism, one has to identify the foundations and the traditions at the origin of Canada’s federative compact. In August 1998, in a ruling that it was called upon to make concerning Quebec’s right to secede, the Supreme Court of Canada established four basic principles to be respected by all members of the federation: democracy, federalism, the rule of law and constitutionalism, and finally, respect for the rights of minorities. The four principles articulate the foundations of the constitutional structure of Canada upon which the country’s federal traditions are built, develop, and grow over time. In Chapter 1, Marc Chevrier explores the genesis of the idea of federation in the minds of the founding fathers of the United States of America and of the Fathers of Confederation. While Americans have always seen their 1787 Constitution as a veritable political foundation and an advance in understanding government and governing, due its long tradition of exegesis, Canadians have given their Constitution neither the same degree of study, nor the same prestige. However, Chevrier places the two founding moments side by side, and argues that the two undertakings are commensurable in worth and ideas. To show how the American and Canadian founding fathers conceptualized federalism, Chevrier highlights the context in which the two communities emerged, the processes by which they were created, and their ideological horizons. He argues that in both 1787 and 1867, the new state went beyond the initial intentions of those who created it and resulted in a new form of regime. In Chapter 2, Dimitrios Karmis returns to the primary normative notions of federalism, which mark the history of modern political thought. His purpose is to create a little distance and shed some needed

10  Foundations and Traditions

light on the roots of the federal crisis in Canada. His essay is in three parts, each describing one of the main currents in the modern federal tradition: universal, communitarian, and pluralist federalism. While the history of modern political thought is dominated by the discussion and defence of unitary states, Karmis reminds us that this history nonetheless also contains many illustrious voices committed to defending normative conceptions of federalism. Referring to discussions surrounding the Meech Lake (1987–1990) and Charlottetown (1992) accords, Karmis notes that even at the height of the constitutional discussions that have marked Canadian politics over the past forty years, political players have often seemed to deny that there are multiple normative conceptions of federalism and have tended to portray themselves as defenders of the only ‘true’ federalism. Yet, the issue of the normative foundations of federal systems is based on a fact too often overlooked in debates on the relevance of maintaining or establishing a federal system: an institution, no matter what it is, can never be an end in itself.

1 The Idea of Federalism among the Founding Fathers of the United States and Canada marc chevrier

Tout n’est pas faux dans ce qui fut abandonné. Tout n’est pas vrai dans ce qui se révèle. Paul Valéry, Tel quel II

In general, each modern society is considered to have begun with a specific event that is commemorated with an annual celebration that rekindles patriotism and creates a feeling of togetherness. The United States seems to be the archetypical example in modern times of a democratic society with a birth date that stands out. It resulted from a constitutive undertaking led by the very people who had expelled the British by force and whose ambition was to establish a new political regime. The foundation, which united political will, democratic ideals, and fortune, now has a mythological aura. Fascinating both to Americans and to foreigners seeking models, the foundation of the United States has led to a rich tradition of historical exegesis and political reflection on the ideas and influences that wove the tissue of the founding document of 1787. Naturally, studies that cover other founding events of comparable scope have portrayed the American Revolution as the model for all modern revolutions. Yet, researchers have been less curious about contrasting the foundation of the United States with that of its immediate neighbour. This has a lot to do with the attitude of Canadians themselves with respect to the way their country was founded. There has always been a certain reticence, at least until very recently,1 to consider the creation of Canada in 1867 as the result of an intellectual undertaking comparable to that over which the authors of The Federalist presided. The most widespread feel-

12 Marc Chevrier

ing in Canada was that the country resulted from an ad hoc arrangement that pragmatic politicians had concocted with little concern for the subtleties of political philosophy. Much of the reluctance also came from the fact that the founding fathers of 1867 did not really found very much, first because they did not invent a new political regime, and second because they simply imitated the British constitution and did not really envisage laying the foundations of a new political science.2 Moreover, Canadian political science, under the influence of systems analysis and functionalism, has proven little inclined to integrate the political tradition into its repertory. In the 1960s, historians’ strong preference for social and economic history began casting a shadow over political history, but in recent years in both English-speaking Canada and Quebec, it has made a comeback, which brings the intellectual genesis of the Dominion of Canada into the spotlight again. In this study of the political thought underlying the Canadian and American federal systems, I will focus on the idea of federalism as it appeared to the constituents and as they reworked it to solve some of the problems that they were facing. The best way of grasping the meaning of the idea of federalism is not so much by doing a strict exegesis of the documents in which the words federation and federalism appear, but by placing the idea in the context of the time, in particular, in relation to the general political philosophy that inspired the founders. It might be objected that, aside from its contribution to the history of ideas and political systems, this kind of study sheds little light on present federal regimes, which are very far from the ancient context their founders knew. We should not forget, however, that a regulating idea governs all federations: that of a founding compact. As a general rule, a federation can be defined in relation to the original agreement, which moulds the thought of political actors and creates a boundary to be respected or crossed. Embodied in institutions and constitutional law, federation is thus a record of a constitutive action. Not all federal covenants acquire the dignity of a veritable foundation in Hannah Arendt’s sense, in other words, in the establishment of a political order by which people come together to erect a stable material edifice to house communal action and signal the beginning of a new era. Some will say that Canada is the product of a federal compact that did not result in such a veritable foundation. Yet, although Canada may not have had a momentous beginning, there is no reason not to return to its origins – quite the contrary.

The Idea of Federalism among the Founding Fathers  13

The Births of the United States of America and the Dominion of Canada It would take too long to review in detail the historical circumstances that resulted in the founding in1787 of the United States of America and in 1867 of the Dominion of Canada. Those who are part of a long historical tradition have studied these facts extensively. The Americans chose a federal republican regime, both to establish a democracy designed to span the continent and to correct the defects that the War of Independence had revealed in the 1777 Confederation. Canadians, in contrast, saw their union as a defence against feared attacks by the Americans, the means of extending the railroad from one ocean to the other, a way to create a prosperous economic union, and the end of the forced marriage of English-Canadian Loyalists with French Canadians in an unstable, two-headed legislative union. In both cases, a federal formula was a springboard for the establishment of countries that would grow to include the unsettled areas on either side of the forty-fifth parallel of latitude. In 1787 the United States of America included all of the thirteen revolutionary colonies that had promoted themselves to the rank of sovereign states under the Confederation. However, although the negotiations at the origin of the Dominion of Canada involved representatives of United Canada and all of the Atlantic Provinces, in 1867, only the ‘provinces’ of United Canada, Nova Scotia, and New Brunswick approved the resolutions of the Quebec City Conference in 1864, and on this basis the legislators in London prepared the British North America (BNA) Act. Prince Edward Island went it alone until 1873, and Newfoundland changed its mind and became part of Canada only in 1949. The United States has struck the modern political imagination by the very process by which its Constitution was adopted. In February 1787 the United States Congress convened the Philadelphia Convention to amend the Articles of Confederation, and this began an unparalleled process that ended in June 1788 with ratification of the draft Constitution, which had been adopted by thirty-nine of the forty-two representatives in September 1787. This success crystallized the modern idea of a constitution, namely, that it is legitimate only if it is desired and approved by the people. Moreover, it portrayed the states as the original holders of constitutive power, which the 1787 text placed in their hands with respect to ratification of draft constitutional amendments.

14 Marc Chevrier

The formation of the Dominion of Canada took another path. The founding colonies remained ‘provinces’ in the sense of English public law, in other words, possessions of the English Crown endowed with a local legislative assembly and a governor exercising the sovereign’s prerogatives on His Majesty’s behalf. While the provinces were still dependent on London with respect to foreign policy and constitutional amendments, they behaved like veritable ‘little countries’ with respect to domestic policy and had already been enjoying ministerial accountability for a number of years. Although the opponents of Confederation had called for an American-style constitutional convention to form the future union, the colonies’ leaders preferred an approach that they considered more consistent with British tradition. After intercolonial conferences in Charlottetown and Quebec City in 1864, each colony considering entry into the union held a debate in its assembly, followed by a vote. Next, a final conference was held in London to fine tune the resolutions that the Westminster Parliament would fashion into legislation. Legally, London held the constitutive power, but the process by which the Dominion of Canada was created meant that the colonies’ legislative assemblies acted as if they held part of that power. Although they did not have to lead ratification campaigns, the architects of the Quebec City Resolutions were nonetheless required to defend their plans for union before their respective legislative assemblies and public opinion; however, they left neither written documents similar to the chronicles in The Federalist nor complete records of their deliberations. In both the United States and Canada, the idea of federalism went through a long period of gestation before the birth of a federal regime as such. The American authors date the dawn of federalism back to the colonial period. Between 1643 and 1684 four American colonies tried to form a confederation to contain Indian attacks. Another attempt at federal union was born under Benjamin Franklin, who invited nine American colonies to form an intercolonial government that would guarantee its members’ security and regulate trade.3 According to Walter Bennett, Americans became accustomed to the idea of federalism through the very way in which they conceived of the colonies’ status in the British Empire. In fact, the colonies’ inhabitants did not really see the British Empire as a whole dominated by a united government, but rather as a juxtaposition of political bodies, each with an area of autonomy owing to the basic statutes of the Empire. The theory of Parliament’s absolute sovereignty over the American colonies was certainly

The Idea of Federalism among the Founding Fathers  15

endorsed by some on both sides of the Atlantic. However, a roughly equal number of colonial leaders based their thoughts on the general principles of natural law and contracts, so that they saw their relations with London in the framework of a federal empire with various possible configurations: (1) London enjoyed supremacy over the colonies, but only in some areas; (2) the Empire was composed of a personal union among different political communities, in other words, it was a Commonwealth placed under the shared authority of the king, not the Westminster Parliament;4 (3) the colonies were sovereign in all respects, but had tacitly consented to having London regulate trade.5 This vision is implicit in the 1776 Declaration of Independence, which saw the Empire as a grouping of equal political communities united under the king’s authority. It became dominant at the end of the American colonial era, and, according to Bennett, partly explains the subsequent success of federalism in the United States.6 The War of Independence spurred the United States on to a federal union, although via a detour through confederalism under the regime established by the 1777 Articles of Confederation that created the United States of America. Works on federalism often cite this regime as an example of classical confederation, although at the time, as we will see below, today’s distinctions between federation and confederation did not yet quite exist. Much of the justification for the 1787 Constitution lay in the defects that the Federalists saw in the regime, which had quickly become unworkable after the war. Numbers 15 through 23 of The Federalist detail the defects of the 1777 Articles of Confederation. According to the authors, one of the principal problems was insufficient coercive power. The Confederation had neither a real executive with its own means of taking action, nor a body of autonomous representatives, independent of the states. The powers of the Congress were limited, and its fiscal authority non-existent. It could not set a common customs policy, form an economic union guaranteed by a single currency, or control trade. Unable to enforce its tribunals’ decisions, the Congress was restricted to making decisions by qualified majority. The Federalists, in particular James Madison, thus presented their plan for a federal union as a compromise between a confederation and a national government, that is, a unitary state. It is more difficult to trace the source of the federal idea in Canada back to the conception that the former Canadians and Loyalists had of their relation to Great Britain. Edmond Orban classifies the Iroquois League of Nations, which included five tribes from the sixteenth centu-

16 Marc Chevrier

ry to the second half of the seventeenth century, as one of the ancestors of confederative regimes;7 however, it does not seem that the League, supposing it was known to them, inspired the Canadian architects of the Dominion. It was rather the Americans who claimed filiation with the League. In 1831 a Canadian, Pierre de Sales Laterrière, became the spokesman of an imperial federation that would give the colonies direct representation in Westminster.8 Among the Patriots of Lower Canada, a federal conception of relations between the colony and London gradually emerged. The ninety-two resolutions of 1834 proposed a colonial regime in which London would recognize its colony’s right to a voice in constitutional reform and autonomy in domestic affairs;9 however, in 1837–38, through its Parliament and generals, London summarily dismissed this vision of a federal empire. We have to look back to the history of the United States to find a precursor plan for the Dominion of Canada. Around 1763–64 Justice William Smith of New York State drafted a plan for a federation of British American colonies in order to counteract the revolutionary threat.10 In 1774 the Loyalist Joseph Galloway submitted to the Continental Congress an imperial federation plan for the American colonies. The colonies would elect a parliament that would, however, be accompanied by an upper house of senators appointed for life by a president general with broad powers, who would himself be appointed by London. This hierarchical union was designed to channel the ambitions of local politicians, who were frustrated by their inability to participate in colonial government. Other Loyalists made proposals similar to those of Galloway. In Great Britain, Adam Smith suggested, in The Wealth of Nations, that an imperial union among the American colonies and London that would give the colonies minority representation in the British Parliament and good positions for ambitious men from the colonies. As Peter Smith has shown, the Loyalists of Upper Canada adopted the American Loyalists’ ideas and proposed highly centralized federal unions, such as those in Jonathan Sewell’s plans.11 In his famous 1839 report, Lord Durham considered the union of Britain’s North American colonies under a federal regime. In French Canada, the press began talking about federal union around 1847, and before 1850 Étienne Parent was the most visible intellectual figure promoting federalism.12 In 1858 Joseph-Charles Taché published a work describing a federal union based on a kind of republican conservatism.13 The idea really took off when the Great Coalition was formed under Premier Étienne-Paschal Taché, John A. Macdon-

The Idea of Federalism among the Founding Fathers  17

ald, and George-Étienne Cartier, Conservative leaders in Upper and Lower Canada, and George Brown, leader of the Reformers from Upper Canada. The architects of the Dominion of Canada might seem to have been less well versed in the history of federalism than their American predecessors; however, they were in fact aware of more or less the same precedents as the Americans and also had the benefit of the examples of the United States and Switzerland, as well as New Zealand, which had a centralized quasi-federal regime between 1852 and 1876.14 Everything indicates that a number of Fathers of Confederation were familiar with The Federalist, and that they found Hamilton’s contributions particularly interesting.15 Revolutionary Invention and Counter-revolutionary Transplant The origins of the United States and Canada differ in their scope and ambition. The result of a revolution, the foundation of the United States was spurred by a spirit of invention flowing from a desire to leave behind the institutions inherited from London. This was a revolution, first, because the War of Independence upset the legal regime imposed by Britain and replaced it with a new order, and, second, because that rupture led to other breaks with the past and culture of the American colonies.16 The American experience broke with the classical vision of revolution, understood as a return to sources, to a lost state of happiness and freedom. While the American revolutionaries may have thought that their struggle was intended to restore former colonial freedom, the course of events changed their revolt into a real revolution, in other words, into the creation through coordinated, and sometimes violent, action of a new political body, a novo ordo saeclorum.17 Determining for the 1787 federal constitution, the War of Independence fed Americans’ fear of despotism and gave birth to a democratic radicalism that presaged the resurgence of anarchy and factions. This explains why, faced with the authority vacuum left when the British were evicted, the primary task of the American founders was to create a stable power and not merely contain it. As Hannah Arendt wrote, in assessing these events, ‘the main question for them was certainly not how to limit power, but how to establish it, not how to limit government, but how to found a new one.’18 This point is central to understanding American federalism. Usually, federalism is thought of as a

18 Marc Chevrier

means of separation of powers; it is considered the vertical or territorial counterpart of the classical separation of horizontal powers.19 Yet, as we will see below, the authors of the U.S. Constitution saw federalism as a way to create power. The foundation of Canada is more singular and more difficult to describe than that of the United States. Canada is the only country in the Americas that did not discard the political system inherited from its colonizing country and substitute a new one. After independence, the Latin American countries were quick to get rid of their monarchical institutions, and after the fall of the House of Bragança in the 1891 Revolution, Brazil adopted a federal republican constitution. Canada rejected such a break. Its foundation proceeded from a desire to preserve the spirit of British parliamentarianism in colonies that remained loyal to the British Crown. The Fathers of Confederation were counter-revolutionaries who feared two major threats to freedoms: republican anarchy, of which the American Civil War provided a deplorable but instructive example, and Catholic ‘tyranny,’ even though French Canada had lost its political freedom in 1840 and, surrounded by British immigrants, had begun to adopt English freedoms. A number of Fathers of Confederation admired Edmund Burke and thus distrusted the abstract, universal doctrine of human rights.20 Rights were seen as a legacy that the English nation had left its children and that entailed customs that had to be preserved for posterity. They rejected political radicalism and preferred reform. For them, Parliament, through representation and thanks to the exceptional and talented men that it brought together, was the body able to speak for and on behalf of the people. Parliamentary deliberation was thus a better means of coming to an informed decision than direct democracy, which was subject to the fury of the crowd.21 The creation of the Dominion of Canada thus seems to have been counter-revolutionary, although not a restoration, for the English colonial system had succeeded in controlling a republican rebellion in Upper and Lower Canada in 1837–38 and maintaining itself thereafter. It would be more accurate to say that Canada was the continuation of a political transplant designed to remain faithful to England’s Glorious Revolution of 1688, which united political freedoms with constitutional monarchy.22 That event, however, was not really a revolution in the modern sense of the word, because although it introduced the concept into political language, it drew its lustre and prestige from restoration of the monarchy’s power to its original splendour and strength.23 The

The Idea of Federalism among the Founding Fathers  19

faithfulness to the political spirit of England does not mean that the foundation of Canada went smoothly. The debates leading up to Confederation reveal an uncertain world full of threats of insurrection and fear of border attacks, one in which the political freedom won so dearly in the colonies was exposed to the perils of tyranny and plots woven by adversaries of public order. The foundation of Canada encapsulates the less than exalting truth that Hannah Arendt expressed so well: ‘And we also know to our sorrow that freedom has been better preserved in countries where no revolution ever broke out, no matter how outrageous the circumstances of the power that be, and that there exist more civil liberties even in countries where the revolution was defeated than in those where revolutions have been victorious.’24 The declared antipathy of the Fathers of Confederation to republicanism and their faithfulness to the British constitution thus shaped the very conception that they had of the Dominion’s federal structure. First, the declared loyalty limited the possibilities open to political imagination. Shortly before 1867, Great Britain and its colonies included few examples of political union, aside from that of New Zealand. Second, their loyalty forced the Fathers of Confederation to harmonize the federal system with the canonical example of English parliamentarianism, which divided legislative power in accordance with the King-LordsCommons triad. Finally, to remain loyal to the spirit of the English monarchy, the Fathers of Confederation designed a system of government that concentrated power in the hands of the executive. According to Frederick Vaughan, political theorists have tended to overestimate the importance that the Fathers of Confederation placed on the principle of federalism, when in fact, the principle of monarchy was the primary basis for the new constitution.25 Moreover, sovereignty was to remain the absolute prerogative of Parliament and not fall into the hands of the people. It is thus not surprising that the nature of these two foundations influenced the choice of historical references employed in the founding deliberations. The Americans, who were placed in a new situation, saw themselves in the midst of a great vacuum. Little inclined to look to the Old World, which still had absolutist political systems, they took many of their political models from Antiquity. Paradoxically, while the American Revolution put the seal on the collapse of the ancient Roman trinity of religion, tradition, and authority, which had survived into modern times, the American founding fathers aspired to nothing less than to

20 Marc Chevrier

equal ancient virtue. Arendt says that without the striking example of the grandeur of Antiquity, the Americans would never have had ‘the courage for what then turned out to be unprecedented action.’26 The Fathers of Confederation did not seek examples so far afield, although their parliamentary debates were certainly peppered with references to Antiquity.27 References to the history of England were omnipresent, and there was much mention of the political situation in Europe; however, the shadow of the United States hovered over the discussion. It was in fact the Patriots, who had been gradually won over by republicanism in the 1830s, who celebrated the virtues of Antiquity.28 The Ideological Horizons of the Two Foundations Historical writings on the American Revolution seem to have discovered its properly philosophical dimension only relatively recently.29 The pioneering works of Gordon Wood and Bernard Bailyn shed light on the fact that the political cleavages that divided England during and after the Glorious Revolution of 1688 were reproduced in the colonies.30 Whig ideology, which was opposed to royal absolutism during the first revolution against the Stuarts, broke into two opposing factions under Walpole: the Court Whigs and the Country Party.31 Inspired by the Scottish Enlightenment, the former argued for close collaboration between Parliament and the Executive. The Crown should control parliamentarians through favours and good positions distributed so as to guarantee stable and effective government. Favourable to the growth of a free market civil society, the Court Whigs approved the state’s use of credit to fund capitalist undertakings and maintain a permanent army. In contrast, the Country Party incarnated the interests of the hinterland; it jealously defended parliamentarians’ independence from the Crown, which it accused of corrupting elected officials and the people and thus undermining English politics. The more radical fringes of the Country Party denounced the harmful effects of trade on citizens and insisted on virtue as the moving force of the Commonwealth – or republic. From the research done by Stéphane Kelly and Peter Smith, it is clear that the respective influences of these two currents manifested themselves in different ways in the British colonies and the United States.32 While the imagination of American revolutionaries was captured by the Country Party’s arguments, which portrayed the Crown as corrupt and threatening, the defenders of a Canadian union were more in line with the ideology of the Court Party, which took root in Canada when

The Idea of Federalism among the Founding Fathers  21

the Loyalists immigrated to escape the American Revolution. In other words, in the United States, the Country Party of the revolutionaries triumphed over the Court Party, which was defended by a Loyalist opposition, although once the Revolution was over the revolutionaries had to reinvent their political language to establish a new regime of power. In Canada, the opposite happened. The Great Coalition succeeded in foiling its critics who, coming from both the Maritime colonies and United Canada (Canada East and Canada West), borrowed many of their themes from the Country Party. By shedding light on the underlying ideologies, we can see how the origins of the United States of America and of the Dominion of Canada were intimately linked to what one granted and the other ruled out. The Composite Nature of Federal Unions In neither 1787 nor 1867 was federal doctrine clearly defined. In 1787 the American inventors of a ‘federal republic,’ in fact, designed a new system of government that could not be described using the political concepts available at the time. Eighty years later, Canadians employed a variety of concepts to describe the Dominion’s nature, although they agreed on neither the terms nor the actual nature of the regime thus founded. In fact, for the founding fathers of both countries, a federation was not yet a system different from known forms of composite and fragmented government. Let us look first at the American case. At the end of the eighteenth century, politicians understood the term federation in its classical sense, in other words, as a synonym for confederation, and they employed both terms interchangeably. For Americans, confederation clearly referred to a regime established by the Articles of 1777. The opposite of confederation was unitary government, also known as national government.33 The question is whether, when they established a federal republic in accordance with Montesquieu’s thought, the Americans had three distinct forms of government in mind: confederation, federation, and the unitary state, or only two, namely, confederation and the unitary state. According to Martin Diamond, the American founding fathers did not make the three-part distinction that we make today. They saw two opposing regimes: the federal or confederal state, which designated a voluntary association of sovereign states pursuing certain goals together, and the national or unitary state.34 A federation or confederation was a league that maintained the sovereignty of each member state,

22 Marc Chevrier

which had equal status that was expressed through unanimous shared decisions. Diamond argues that the Philadelphia Compromise did not establish a veritable federation in the modern sense. Rather, it was a mixed union that contained some aspects of a unitary state and others of a confederation. Martin prefers to employ a Tocquevillian concept of incomplete national government that resembled more a decentralized unitary government than a federation. Decentralization implies a centre from which peripheral entities are formed, in contrast with federalism, which does not authorize a centre – since it juxtaposes orders of government, each sharing in sovereignty. When we examine the arguments that Madison used to show that the proposed constitution complied with republican principles, we can clearly see that the document contains a mixture of federal and unitary components. Thus, according to Madison, the very process by which the U.S. Constitution was adopted had a federal dimension, for it involved an agreement among representatives followed by ratification by the states. In contrast, the House of Representatives has a national aspect, while the Senate, formed of state representatives, is federal. The election of a president through an electoral college combines both federal and unitary aspects. Once ratified, the Constitution applies to the whole country, like a statute of a unitary state. Insofar as the legislative competency of Congress is limited to certain jurisdictions and does not extend to full sovereignty, the United States government cannot claim to be national. Finally, because both Congress and the states participate in the amendment procedure, that process blends both federal and national features. This led Madison to say that ‘the proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.’35 Diamond’s thesis is not endorsed by all political scientists and historians.36 While it is possible to think that federation and confederation were confused before the U.S. Constitution was written, many consider that the concept of federalism acquired new meaning in the deliberations at the Philadelphia Convention and the following ratification campaign. The American founding fathers, forced to make a compromise between the New Jersey and Virginia proposals, would have circumvented the alternative between confederation and unitary government by setting aside the concept of sovereignty, which had ‘contaminated’ the political discussion of the American revolutionaries. This allowed them to design a new political system with no recognizable sovereignty, in other words, without supremacy, and which could blend confederal features into a national system.

The Idea of Federalism among the Founding Fathers  23

In Canada there was also ambiguity in the initial choice of concepts. Like the U.S. Constitution, the British North America Act , now renamed the Constitution Act, 1867, is rather laconic with respect to federalism. The concept of federalism appears only once in the text, in the preamble: ‘Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into one Dominion.’ The Fathers of Confederation referred to their proposal using a number of concepts: confederation, federation, federal or federative union, legislative union, Federated Provinces of Canada. The founding fathers used some of these appellations indiscriminately, without worrying about the contradictions and confusion thus produced. For example, in a debate in the Parliament of United Canada in February 1865, John A. Macdonald said, ‘And I am strong in the belief – that we have hit upon the happy medium in those resolutions, and that we have formed a scheme of government which unites the advantages of both giving us the strength of a legislative union and the sectorial freedom of a federal union.’37 Referring to the residual clause attributed to the federal parliament, he said, ‘We thereby strengthen the central Parliament, and make the Confederation one people and one government instead of five peoples and five governments, with merely a point of authority connecting us to a limited and insufficient extent.’38 George Brown, leader of the Reformers of Canada West, was just as ambiguous. On the one hand, he asserted, ‘but the very essence of our compact is that the union shall be federal and not legislative,’39 and on the other, he said, ‘but in truth the scheme now before us has all the advantages of a legislative union and a federal one as well.’40 This ambiguity in the political language of the time resulted from a number of factors. We often forget how heavily the 1840 Union weighed on the founding debates. That legislative union came to acquire quasifederal features de facto, with statutes applicable separately in the two halves of United Canada, two administrations, two justice systems, two educational systems, and two municipal regimes, as well as the habit of giving leadership of the government to a team composed of an English-speaker and a French-speaker.41 The 1840 Union did not provide an example of a unitary state because it had no sovereignty and was unable to amend its constituting legislation itself, although in 1856 it did acquire the ability to establish representation in proportion to the population.42 According to John A. Macdonald, despite the 1840 Union’s assimilatory intent, it succeeded in recognizing the people of Canada East as a distinct nation. Macdonald felt there was a risk that Lower Canadians would lose that recognition if representation by population

24 Marc Chevrier

were introduced without any other change in the Union arrangements. Macdonald spoke of the 1840 Union Act as a union treaty, an idea that presaged the theory of the confederative compact, which would grow in popularity after 1867. According to Macdonald, the 1840 Union was a pseudo-federation that had to be abandoned to solve accumulated problems: ‘Although we have nominally a legislative union in Canada […] since the Union in 1841, we have had a federal Union.’43 This makes it easier to understand Macdonald’s insistence on establishing a legislative union, since it seemed to be the contrary of an inadequate system that had turned out to be federal. It is also useful to look at the various concepts used by the Fathers of Confederation in light of the English–Scottish political union, which was achieved in two stages.44 In the first stage, in 1603, James VI, King of Scotland and son of Mary Stuart, ascended to the throne of England, succeeding Elizabeth I. The union of the two crowns maintained the Scottish Parliament, the Presbyterian Church, and the Scottish legal system. The king lived in London and ruled Scotland from a distance, flanked in particular by the General Assembly of the Presbyterian Church. Interrupted during the English Civil War under Oliver Cromwell in 1652, Scottish independence returned when the monarchy was restored in 1660. In the second stage, in 1707, the union of the two crowns was accompanied by a political union consecrated in the Acts of Union, which dissolved the Scottish Parliament, a development that had been ‘bought’ by the corruption of the Court Party.45 However, Scotland received guarantees in exchange for renouncing separate national representation: free trade with England; maintenance of its church, that is, the Presbyterian Kirk, which was governed by an annual General Assembly; its educational system; and its legal system, which had remained close to Roman law, judicial system, and bar – all three of which were separate and distinct from the English common law.46 With a view to the revolutionary threat menacing the United States and France, a frightened England granted legislative autonomy to Ireland in 1783, although, after an insurrection duly repressed in 1798, that arrangement was almost immediately replaced in 1801 by a legislative union less advantageous to Ireland than that enjoyed by Scotland.47 Scotland’s case sheds light on both the 1840 Union of Canada East and Canada West and Confederation in 1867. In the English political culture of the nineteenth century, legislative union was not automatically equivalent to a unitary state in the strict sense. Such a union,

The Idea of Federalism among the Founding Fathers  25

which concentrates sovereignty in a single assembly, was compatible with giving a national minority some protection and a form of internal independence that could be exercised through representatives in the central parliament. Great Britain had two approaches to political union: an assimilating union designed to abolish the autonomy and identity of a people through fusion of its institutions with the British state without any guarantee of compensation, and a union of nationalities, which merged institutions but guaranteed the minority certain rights that accommodated its nationality. This is what happened in the 1840 Union, and it is perhaps what John Macdonald and George Brown envisaged when they spoke of the legislative union that they would have wished in the 1867 ‘confederation.’ This was for them a quasiunitary state incorporating the British tradition of political union in that it included loss of a minority’s internal independence but legal guarantees for the minority with respect to maintenance of its civil, religious, and legal institutions.48 In short, it is not implausible that Macdonald and Brown saw the 1867 Dominion of Canada as a legislative union with some of the advantages of a federal union. Looking back on British history, it was conceivable for them to think that the Dominion of Canada was a form of Scottish-style union, except that the constitutive societies would each have its own assembly.49 Indeed, a large number of the Fathers of Confederation, including Macdonald, were themselves of Scottish origin.50 The debate concerning the grant to the federal parliament of the power to ensure the uniformity of property and civil rights law of provinces other than Quebec (Section 94 of the BNA Act) supports the hypothesis of a Scottish arrangement in favour of Quebec. Protecting Quebec’s legal system, the civil law that was on the point of being codified much to the surprise of all, would have been so essential in the eyes of the Fathers of Confederation and British leaders that it would have justified special protection against federal centralization. Independent of the real degree of political autonomy acquired by Quebec, it was thus important that Quebec maintain the integrity of its legal system. In the Westminster Parliament in February 1867, Lord Carnarvon acknowledged that, under this condition, ‘Lower Canada now consents to enter this Confederation.’51 A number of opponents of Confederation rebelled against the asymmetry of the uniformity power provided for in Section 94. According to them, it would give Quebec a unique status that would ab initio prohibit interference in its civil law.52 Member of Parliament Joseph Cauchon shared this interpretation and was favour-

26 Marc Chevrier

able to the project.53 Moreover, according to Solicitor General Hector Louis Langevin, granting the provinces jurisdiction over the administration of justice and guaranteeing that Quebec judges would come from the Quebec Bar were exceptions made explicitly to protect Lower Canadians.54 Like the doctrine of the American founding fathers at the time, English doctrine at the mid-nineteenth century established no clear distinction between confederation, federation, and the unitary state.55 The first two were often conflated, for example, in John Stuart Mill’s 1861 treatise, Considerations on Representative Government. Along with Edmund Burke and John Locke, Mill is one of the philosophers most frequently quoted by the Fathers of Confederation.56 In Chapter 17 of his treatise, Mill discusses representative government in federal systems. The chapter begins, ‘Portions of mankind who are not fitted, or not disposed, to live under the same internal government, may often with advantage be federally united as to their relations with foreigners.’ This is probably the origin of the expression found in the preamble to the BNA Act and inserted into the final version of the text as a replacement for ‘federal union,’ which was in the Quebec City and London resolutions. Far from distinguishing confederation and federation, Mill described various forms of federal union, from confederal unions to more integrated federal unions. Mill classified as confederations the German Confederation, the Swiss Confederation before 1847, and the United States of the Articles of Confederation. He noted that in all of these regimes, the central government did not represent the member-states, and its decisions could be objectionable to those states – but not to their citizens. Next, he described the more complete form of federation, which is what the United States became after 1787 and Switzerland after 1848, in which citizens are subject to the laws of both levels of government in accordance with constitutional limitations set by a supreme court. Mill admitted that the former form of federal union is more easily subject to internal conflict, while the latter coexists only with republican regimes. It is interesting to see that, according to Mill, the century-long union of the Scottish and English crowns was an example of a confederal federation, although it had no veritable federal institutions aside from a single king who provided the two realms with a consistent foreign policy. Mill did not discuss the case of Scotland after the 1707 Act of Union, aside from indicating that a single parliament was compatible with different legal systems linked with distinct governments coexisting in a country. In the following chapter of his book, Mill discussed the government of

The Idea of Federalism among the Founding Fathers  27

colonies. He saw a colony’s relationship with its colonizing country as a rather loose federation that would give it even more freedom than that which the U.S. Constitution accords its states. He wrote that it is ‘the slightest kind of federal union.’57 If we use Mill’s text as a means of grasping the intentions of the Fathers of Confederation, we see that their plan was a hydra, with each head referring to a different reality: a legislative union with bijuralism and local autonomy, a form of loose confederalism, an integrated federation, and an imperial union of the Dominion of Canada with Great Britain. The least probable of all the avenues was integrated federalism because the United States, ravaged by Civil War at the time, was a cautionary example. Neither the American founding fathers nor a political philosopher of Mill’s stature worried about precise definitions of confederation, federation, or unitary state. According to them, federalism covered all three: it was a flexible regime that brought communities and even nationalities together using mechanisms compatible with the unitary state. Could the Fathers of Confederation have envisaged a form of loose confederalism for Canada? It would have taken a lot for Macdonald and Brown to have shared this opinion. Yet, the persistence of the idea that Canada was born of a confederal compact between two founding peoples or constitutive colonies can be partly explained by the nineteenth-century’s broad definition of federalism, which actually covered all fragmented regimes in opposition to the strict unitary state.58 The Question of Sovereignty Reconciling state sovereignty, generally conceived of as one and indivisible, with the theory of federalism, which is quick to divide sovereignty between two equal levels of government, has long posed an irresolvable problem. Ever since Jean Bodin’s writings, the classical theory of sovereignty has postulated the indivisibility of the supreme power.59 Sovereignty is the ability to make a final decision or resolve a conflict once and for all, and it therefore cannot be shared. According to William Blackstone, sovereignty is not a monarch’s absolute power. Since anarchy and royal absolutism threaten freedom, Blackstone links sovereignty with the power to enact statutes, which belongs to Parliament alone.60 Blackstone moves the locus of sovereignty to a composite body such as Parliament, but he nonetheless considers it absolute and indivisible, and leaves little room for the play of natural law.61

28 Marc Chevrier

The controversy surrounding federalism and sovereignty comes from the distinction that has to be made between the federal state and confederation. In the classical vision, sovereignty either belongs exclusively to the union or is possessed by the member states of the confederal body. A political regime in which sovereignty was shared would not be sustainable since it would be vulnerable to the slightest conflict. Of course, recourse could be had to a sovereign third party that would solve the dispute as a last resort, but this would reintroduce unshared sovereignty. In the United States, the question of sovereignty dominated political debates from the pre-revolutionary period until the Constitution was adopted in 1787.62 The Fathers of Confederation certainly discussed sovereignty, but in a different way. The Americans got around the problem by defining a federation as a political system that had no sovereign but was maintained by balancing competition among powers, and if equilibrium was lost owing to insufficient checks and balances, the issue was referred to the courts. Aside from some exceptions, the promoters and advocates of Canadian Confederation endorsed the classical conception of sovereignty. However, if we are to believe Robert Vipond’s thesis, in his monograph entitled Liberty and Community, several years before the 1865 debates, the Reformers of Canada West had begun to consider a federal union juxtaposing two independent and autonomous levels of government under the ultimate authority of the Westminster Parliament. The Americans certainly did not succeed in establishing a sovereignty-free political system on their first try. At the beginning of the Revolution, the American leaders remained attached to the classical doctrine of sovereignty and ‘there was in 1776 little theoretical comprehension among most Whig leaders of any possibility of a divided sovereignty.’63 The Federalists who were against the 1777 Confederation of States originally hoped to establish a real national government at the Philadelphia Convention. Thus, for Alexander Hamilton the new regime absolutely had to give sovereignty to a national government of the United States. He affirmed: ‘We must establish a general and national government, completely sovereign, and annihilate the state distinctions and state operations.’64 According to Thierry Chopin, ‘most Federalists really had the intention to completely eliminate the states […] in the name of the principle that in every political community, there must be a single supreme power.’65 At the Philadelphia Convention, Madison argued that the national government had to have a veto over state laws because state intervention in national affairs was much more serious

The Idea of Federalism among the Founding Fathers  29

than the inverse.66 The Virginia Proposal, to which Madison had contributed, provided that the national legislature would be able to annul any state law that it considered contrary to the Articles of Union.67 The Anti-federalists were persuaded that, sooner or later, a new federal power would end up establishing absolute and unlimited power that would usurp the sovereignty of the states.68 The Virginia Proposal was met with the New Jersey Plan, which the Anti-federalists brandished; they too were convinced that their plan was consistent with federalism.69 The two visions seemed irreconcilable: either the thirteen states would remain independent nations subject only to international law, or they would be relegated, as one of the representatives admitted, to the status of ‘simple counties belonging to a unified republic and subject to a single shared law.’70 The Federalists managed to respond to the objection raised by the defenders of sovereignty by transforming the meaning of the classical concept of sovereignty. In order to do so, they criticized Blackstone’s concept of parliamentary sovereignty and instead insisted on the idea that every political system has to draw its legitimacy from the sovereignty of the people. This democratic definition of sovereignty owed much to the writings of James Wilson, a prolific author, one of the six signatories of the 1776 Declaration of Independence, and an active advocate of ratification of the 1787 Constitution. Wilson criticized the British Parliament’s absolute power over its colonies; according to him, it could not violate divine natural law, according to which the consent of the governed is the basis for political obligation towards those who govern.71 Americans were easily convinced that Blackstone’s doctrine of sovereignty was inappropriate for the free government of the United States, and instead used Wilson’s popular conception of sovereignty as a foundation for their new state. As Madison said in The Federalist, ‘we may define a republic to be […] a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.’72 Transferring sovereignty from a parliament with jurisdiction in every area to the American people entailed that the latter were invested with constitutive power. By invoking the sovereign authority of the people, the Federalists were able to circumvent Anti-federalist objections to the Constitution ratification process, which involved conventions held in the states, whereas the Articles of Confederation placed constitutive power in the hands of state legislatures.73

30 Marc Chevrier

Thanks to the transfer of sovereignty from Parliament to the American people, the Federalists were also able to design a political system without a real sovereign in the classical sense, in other words, without a third party able to render a final decision to resolve disputes. It thus became possible to conceive of legislative power, indivisible under the English theory, as divided between two distinct tiers of government, each with final authority to pass legislation on certain matters. In their respective spheres of competency, the levels of government were thus considered ‘sovereign’ in the second sense of the word, for in the first sense sovereignty lies in the hands of the constituting people. There would be no need for a majestic third party to preside over dispute resolution. Thanks to checks and balances, which would distribute powers to interdependent bodies, the federation would be maintained. Hannah Arendt wrote that ‘in this respect, the great, and in the long run, perhaps the greatest American innovation in politics as such was the consistent abolition of sovereignty within the body politics of the republic.’74 But what would happen if the equilibrium were broken? If ‘the necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power,’75 how could duality be preserved in the federal system? James Madison advanced various arguments to explain how checks and balances could ensure duality. First, the U.S. Constitution provides that the different tiers of government have asymmetrical influence on one another. Madison wrote, ‘the state governments may be regarded as constituents and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.’76 Next, a clear advantage of the states over the government of the Union was that they had the direct support of the people, and local spirit dominated both levels of government. ‘A local spirit will infallibly prevail much more in the members of the Congress, than a national spirit will prevail in the Legislatures of the particular states.’77 Madison also considered that fear of federal tyranny would give rise in the American people to the same spirit of resistance and vigilance that had been generated by the long period under the British yoke. In short, the federal government’s attempts to interfere in the affairs of the states would naturally be blocked by the people’s spontaneous attachment to the states. There would be no need for a higher level to arbitrate disputes. Did that mean that the checks and balances and people’s vigilance would exclude recourse to the courts? While it is clear that for Madison

The Idea of Federalism among the Founding Fathers  31

the courts were responsible for applying the Constitution, the supreme law of the country,78 he remained more evasive about the courts’ role in solving intergovernmental disputes. In The Federalist, Number 39, Madison admitted that ‘some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact.’79 Yet, it seems that Madison, like Thomas Jefferson, was reticent to give the courts any superiority over the legislature. In contrast, Alexander Hamilton did not see court control over statutes as the assertion of any such superiority, but rather, he saw the superiority of the people, whose will is expressed in the Constitution, to be over the will of the legislators.80 Around 1787–88 Madison thought instead that the courts, like the other powers, had a competing right to interpret the Constitution of the United States of America.81 He imagined that the courts would intervene in ordinary cases of violation of the constitutional compact, but that extreme cases would be left to the peoples of the states.82 Later in his political career, Madison came to endorse court tests of statutes in all cases.83 In Canada, the language of the Fathers of Confederation remained largely consistent with the idea of sovereignty, which also underpinned the discourse of the opponents of Confederation. The Fathers of Confederation did not begin with a tabula rasa when they drew up their union proposal. Wishing to maintain colonial ties, they did not see parliamentary sovereignty in terms of tyranny. They instead believed in the virtue of English mixed government, which they saw as a glorious heritage that had to be preserved. The tyranny they feared was that of the masses, which threatened institutions and fomented discord. The Fathers of Confederation saw the American situation through the lens of the language of sovereignty. Thus, for John A. Macdonald, the fatal mistake of the U.S. Constitution was to have placed sovereignty in the hands of the states. At the Quebec City Conference, Macdonald said: ‘The various States of the adjoining Republic had always acted as separate sovereignties. The New England States, New York State and the Southern States had no sympathies in common. They were thirteen sovereignties, quite distinct the one from the other. The primary error at the formation of their constitution was that each state reserved to itself sovereign rights, save the same portion delegated. We must reverse this process by strengthening the General Government and conferring on the Provincial bodies only such powers as may be required for local purposes.’84  Macdonald used the same analysis before the Legislative Assembly

32 Marc Chevrier

of United Canada, and went so far as to claim that the attribution of sovereignty to the states rather than to the Union was the cause of the Civil War.85 According to him, the principle of sovereignty still governed the United States; it was simply inappropriately attributed. Other parliamentarians agreed with Macdonald.86  The stability of the Dominion of Canada would therefore not be based on a balance of power between two equally ‘sovereign’ levels of government, but rather on the attribution of sovereignty to the central government. This explains why Macdonald felt the latter had to be given ‘all the powers which are incident to sovereignty,’ as well as those covered in the residual clause concerning all matters of general interest not delegated to the provincial governments.87 Jurisdictional disputes would be eliminated from the word go. He said that ‘we have thus avoided the great source of weakness which has been the cause of disruption of the United States,’88 in other words, disputes over jurisdiction and authority. Alexander Galt and D’Arcy McGee held that sovereignty disputes could be solved by the fact that Westminster was sovereign.89 According to Macdonald and a number of others,90 federal sovereignty was all the stronger because the Quebec City Resolutions proposed subordinating the provincial governments to the central government and giving the latter a veto over provincial legislation and a right to appeal with respect to confessional schools. Moreover, in Macdonald’s eyes, federal sovereignty was comparable to a colonizing country’s absolute jurisdiction over its colonies.91 The power that the central government would have over the provinces, and which a number of representatives were eager to have, thus seemed to be the opposite of that exercised by the American states over the Union government and on the basis of which the Federalists had established the balance of powers. The language of the opponents to the proposals for Confederation was also based on sovereignty. It was clear to them that sovereignty belonged to the states under the American regime.92 According to Antoine Aimé-Dorion, the proposed Dominion’s federal parliament would ‘have sovereign power, and can do all that it pleases, and may encroach upon all the rights and attributes of the local governments whenever it may think proper. We shall be […] at its mercy, because it may exercise its right of veto on all the legislation of local parliaments, and there again we shall have no remedy. In a case of difference between the federal power and the local governments, what authority will intervene for its settlement?’93 Henri Joly, another opponent of the Confederation plan, argued that there was no middle ground for sovereignty

The Idea of Federalism among the Founding Fathers  33

between confederation and the unitary state.94 Macdonald and Dorion thus agreed on the principle governing the new regime, although they remained divided with respect to allegiances and political doctrine. It would, however, be a simplification of the historical reality to say that both the promoters and the opponents of the plans for Confederation were in complete agreement over the interpretation of sovereignty.95 First, as Robert Vipond has pointed out, the Reform Party, supported by the Toronto press linked with the Globe, began espousing a less sovereigntist version of federal union as early as 1864.96 Since the colonial framework made the British Parliament the seat of sovereignty, it became plausible to think that such a union would be based on a division of jurisdictions between the two levels of government guaranteed under imperial statute, which would then play a role equivalent to that of the U.S. Constitution. The provinces of Canada would thus receive their powers directly by imperial statute, and not by delegation from the federal parliament. In other words, while the American Federalists considered the people to be invested with constitutive power, the Reformers of Canada West considered that power to be held by the imperial parliament. Moreover, a majority of the articles and brochures from the ‘blue’ press in Canada East contained discourse similar to that of the Reform press, and argued that the provinces would be in no way inferior or subordinate to the federal government.97 In the Legislative Assembly of United Canada, the Conservative Joseph Cauchon replied in the following terms to Dorion’s protests against federal sovereignty: ‘But what, then, is the sovereign power over the attributes of the provincial legislatures? If it exists, it must be the Constitution […] there will be no absolute sovereign power, each legislature having its distinct and independent attributes, not proceeding from one or the other by delegation, either from above or from below. The Federal parliament will have legislative sovereign power in all questions submitted to its control in the Constitution.’98 It is vain to seek great theoretical exposés by Lower Canadian reformers on sovereignty and federalism. Marked by great distrust for politics, they remained resistant to constitutional theories and discussions on principles with respect to political systems.99 On the issue of the courts’ role in the resolution of disputes, the Fathers of Confederation were much less loquacious than the Americans. In response to Dorion’s criticism of federal sovereignty and the lack of a dispute resolution mechanism, Cartier first argued that the British government would hear colonial complaints.100 Then, mocked

34 Marc Chevrier

by Dorion, who doubted the effectiveness of such recourse, Cartier said that ‘neither the Imperial government nor the General government will interfere, but the courts of justice will decide all the questions in relation to which there may be differences between two powers,’ and that if the general government were to adopt legislation in an area over which it had no jurisdiction, that legislation would be null and void.101 Dorion doubted that the rights of Lower Canadians would be protected effectively, even if ‘a Federal court of appeal composed of judges of all provinces’ was to resolve jurisdictional disputes. John A. Macdonald’s thought on this point is not exceptionally clear. His sovereigntist conception of the Dominion of Canada seems to have excluded any recourse to the courts. However, at the Quebec City Conference, he said, ‘the people of every section must feel that they are protected, and by no overstraining of central authority should such guarantees be overridden. Our constitution must be based on an Act of the Imperial Parliament, and any question as to overriding sectional matters determined by “Is it legal or not?” the judicial tribunals of Great Britain would settle on such difficulties should they occur.’102 Federalism and Mixed Government The American founding fathers and the Fathers of Confederation wanted to set up stable regimes protected from the tyranny of the majority, such as popular pressure. The bête noire was democracy, a regime that places power in the hands of the crowd, blind and subject to the manoeuvres of factions. To counter the threat of democracy, the Federalists proposed a republic, which they identified with representative government, while the promoters of Confederation proposed the British model of monarchy, which combined responsible government with a strong principle of authority. In both cases, they felt that all governments worthy of the name had to have a built-in buffering, counterbalancing, and moderating mechanism to filter, slow, and even thwart political decision-making. This explains why both the Americans and the Canadians wanted to establish mixed government. In the United States, the ancient idea of mixed government was translated into the concept of balance of powers, which Madison defined as follows: ‘In the compound republic of America the power surrendered by the people is first divided in two distinct governments […] The different governments will control each other, at the same time each will be controlled by itself.’103 According to Thierry Chopin, one of the princi-

The Idea of Federalism among the Founding Fathers  35

ple architects of the ‘balance of powers’ formula was John Adams, who, although he did not participate in the Philadelphia Convention or the ratification campaign, nonetheless paved the way by his reflections on such a system.104 In his writings, Adams argued in favour of the need for a free government to divide its powers using a series of counterweights and ‘balances’ so as to prevent the anarchy and tyranny that had been the demise of ancient democracies.105 The new United States government was to be born of an opposition between three powers, each corresponding to a class of men with their own powers, prerogatives, and privileges, so that the three parts would control and create obstacles to one another.106 Madison based his thought on Adams’ theory, although he made significant changes when he drew up his own system.107 First, he removed the societal hierarchy (presupposed by democracy, aristocracy, and royalty) from the classical model of mixed government that Adams had taken from Polybius.108 According to Madison, these social categories would disappear: under the U.S. Constitution, there was no aristocracy or monarchy but a single people, from which democratic legitimacy flowed. It followed that, since they were all legitimized by the people, the three powers received from the people the specific attributes that they exercised in their respective spheres. The three powers were thus, at least in theory, sociologically identical.109 Second, federalism seemed to be a means of dividing the powers that could be grafted onto the classical separation. Thus, Madison wrote: ‘In the compound republic of America the power surrendered by the people, is first divided in two distinct governments, and then the portion alloted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time each will be controlled by itself.’110 Convinced that the Constitution of the United States was poorly designed and had degenerated into a tyranny of the president or had precipitated the American Civil War, the Fathers of Confederation celebrated the English mixed constitution. Their aspiration was simple: they wanted to reproduce in Canada the King-Lords-Commons triad. This was an old dream dating back to the beginning of parliamentarianism in 1791.111 However, this undertaking ran into a major obstacle: the British colonies in North America had no landed aristocracy. The new Dominion of Canada would therefore be unable to recruit the members of its Senate, the equivalent of the English Upper House, from among their ranks. Since they wanted the Canada’s Parliament to follow the

36 Marc Chevrier

Westminster model, the Fathers of Confederation considered various scenarios: an elected senate, as United Canada’s Legislative Council had been since 1856, a senate appointed by the provinces, and a senate appointed by the federal Crown. The third avenue was chosen. During the 1865 debate in the Legislative Assembly, Macdonald noted the impossibility of creating a landed aristocracy in the Dominion of Canada. Canadian society included no separate class of people. The only way to make up for the absence of an aristocracy was to give the Crown the power to appoint senators for life. Does this mean that Macdonald was renouncing the ambition to reproduce separate social groups in Canada? At the Quebec City Conference, he was clearer: ‘A large qualification should be necessary for membership of the Upper House, in order to represent the principle of property. The rights of the minority must be protected, and the rich are always fewer in number than the poor.’112 He added, ‘[the] Upper House […] is then the representative of property.’113 These words contrast with what Macdonald had said about senators in 1865: ‘that the gentlemen who will be selected in the Council stand on a very different footing from the peers of England. They have not, like them, any ancestral associations or position derived from history. They have not that direct influence on the people themselves, or the popular branch of the legislature, which the peers from England exercise, from their great wealth, their vast territorial possessions, their numerous tenantry and that prestige with which the exalted position of their class for centuries has invested them. The members of our Upper House will be like those of the Lower, men of the people and from the people.’114 Nonetheless, a number of Fathers of Confederation justified the existence of a senate appointed for life by the fact that it had to be independent of the people and composed of the country’s ‘best men.’115 This supposed that only the Crown, and not the people, was able to identify men of ability. Moreover, by abandoning election in favour of appointment, the Fathers of Confederation were following the tradition of Court Whig thought, which was in favour of the Executive branch expanding its control over the Legislative branch through the distribution of good positions and honours, as Lord Durham recommended in his 1839 report. The opponents of Confederation mocked the egalitarian tirades of its promoters and suspected the proposal of being something similar to an aristocratic system.116 Unlike the Americans, the Fathers of Confederation did not ally fed-

The Idea of Federalism among the Founding Fathers  37

eralism with mixed government. The idea that freedoms could be protected by balancing competing powers was foreign to them. Persuaded instead that a regime based on sovereignty would guarantee peace, order, and good government, they did not introduce permanent conflict into the composition of a stable regime. Advocates of the federal model sought more to relate it to the protection of local autonomy and minorities than to extend it to a whole state. This incompleteness of Canada’s federal system can be seen in the fact that the provinces have no voice in federal decisions and, in particular, in the fact that the Senate does not manage to embody the federal principle.117 Even Alexander Galt considered that the regional distribution of seats in the Senate would be neutralized by the federal government’s power to appoint.118 Federalism and Power It is customary to think that federalism serves freedom in that it limits the government’s power. However, when federalism was combined with representative government, it immediately broke with classical thought, and even modern thought up to Montesquieu, in which federal association was believed to be possible only between small states, preferably republics. The American Federalists required federal mechanisms to build a state with a spirit of continuous expansion: its territory, population, and wealth grew constantly throughout the nineteenth century. The Federalists certainly feared absolutism, but not to the point of wanting to eliminate the government’s power, and they knew that American society, once emancipated, would also grow in knowledge and ability. The question was whether federalism, once freed of the limited framework of small republics, would lead the government to acquire power, in other words, towards imperialism, or whether it would be able to contain it. The war against Great Britain won and the 1777 Confederation in tatters, American Federalists had to solve a number of problems. First, they had to buckle down to building a broad government, able to expand to cover the whole continent. Next, fearful of anarchic, unstable democracy, they preferred a republic. Yet, in government theory as they knew it, a republic was not really feasible except in the case of a small state. Monarchy was better suited for large countries. The Federalists got around the problem in two ways: (1) through representation, in other words, by creating a body of elected officials that would operate as a filter between the people and the governments so as to attenuate

38 Marc Chevrier

the most radical demands and authorize the territorial expansion of the country; and (2) federalism. This is where Madison’s famous theory of factions came into play. In his well-known analysis, Madison notes that the division of society into opposing factions is an unavoidable fact and that it would be more costly to try to abolish them by force than to tolerate them. Thus, if they are here to stay, it is just as well to play one against the other and hope that their influence on society will diminish in proportion to the degree to which they oppose one another. The more the community grows, through the combinatory logic of federalism, the less each faction will be able to affect the whole, since the factions will create more and more obstacles to one another. Thus, as Gordon Wood notes, ‘the new federal government was designed to prevent the emergence of any “common passion” or sense of oneness among large numbers of persons “on any other principles than those of justice and the general good.”’119 Through his theory of factions that produce a positive effect through the internal divisions of society, Madison also broke with ancient thought, which had endured up to just prior to Machiavelli.120 Madison’s theory shows that what the Americans were seeking by adopting the federal model was not so much to prevent power but to make it possible to constantly create and even increase it. In other words, federalism produces power by neutralizing the factions that result from the plurality of human interests and passions. Neutralization implies that the factions are controlled but not eradicated. Thus disciplined, divisions behave in society like an invisible hand that authorizes the growth of power in society and government. As Arendt points out, ‘the true objective of the American Constitution was not to limit power but to create more power, actually to establish and duly constitute an entirely new power center.’121 She says that the separation of powers inherited from Montesquieu ‘actually provides a kind of mechanism, built into the very heart of government, through which new power is constantly generated, without, however, being able to overgrow and expand to the detriment of other centers or sources of power.’122 In the same spirit, federalism also provides a mechanism for producing power, by containing factions in society and creating a distant federal government difficult to reach and thus hard to influence.123 A number of American founding fathers and their contemporaries did not hesitate to see the creation of the United States as the birth of a new empire.124 After having discussed the weaknesses of various

The Idea of Federalism among the Founding Fathers  39

known experiments in confederation, Hamilton wrote in The Federalist, Number 22, that ‘the fabric of American empire ought to rest on the solid basis of the consent of the people.’125 The American founding fathers were aware that the Union would undergo major expansion. In The Federalist, Number 43, Madison rejoiced that the 1787 Constitution, unlike the Articles of Confederation of 1777, provided for the admission of new states on the condition of consent from Congress and the states concerned. As republican as it is, the U.S. constitutional system establishes no specific res publica, which leaves the door open for other communities to enter. Dick Howard notes that ‘the presence of a frontier on their immense continent forced the Americans to integrate the future into their present perspectives […] The originality of the Americans, indeed, is that their vision is founded upon a view of federalism in which new territories were welcome on an equal and republican footing with the old ones.’126 One of the reasons for the territorial expansion of the United States was Agrarian Republicanism. Given the growing population, more and more new land had to be made available for settlement in order to maintain the primacy of agriculture over other economic activities and to satisfy settlers’ ambitions to farm pieces of land as independent citizens. Some of the architects of the 1787 Constitution would have preferred to slow down the exodus and adopt the wild spaces outside the thirteen founding states as territories, but in the end, after some hesitation, Agrarian Republicanism came to dominate, with the acquisition of Louisiana.127 Like their American counterparts, the Fathers of Confederation aspired to establish an empire. In February 1865, George Brown said, ‘but seven short months have passed away since the coalition Government was formed, yet already are we submitting a scheme well weighed and matured, for the erection of a future empire – a scheme which has been received at home and abroad with almost universal approval.’128 We should also keep in mind Macdonald’s famous declaration about the ‘interior’ empire that Canada would become, in which the federal government would have colonial-style power over the provinces.129 The Fathers of Confederation had a great dream: to participate in the grandeur of the British Empire, although without renouncing the plan to create an independent ‘Kingdom of Canada’ able to counterbalance the dismantled American empire. Canadian imperial ambitions were different from those of the Ameri-

40 Marc Chevrier

cans in more than one way. First, while Canada was to expand, it was to be an empire within an empire. While London remained sovereign over the Dominion of Canada, the expansion process would be partially controlled by the government and Parliament in Ottawa. Indeed, for the colonies of Prince Edward Island, British Columbia, and New­ foundland, as well as for the Northwest Territories (North-Western Territory and Rupert’s Land), entrance into the Dominion of Canada depended on the colony or territory concerned and Canadian federal institutions. The latter were in a position equivalent to that of the Westminster Parliament.130 Next, the Fathers of Confederation did not develop the equivalent of a theory of factions or production of power through federal means. Rather faithful to a sovereigntist conception of power, they little considered that fragmenting the state would contribute to its power. At most they endorsed the classical vision of English mixed government, in which the tripartite division ensures the government’s stability and authority. Some of the Fathers of Confed­eration vaguely expressed the idea that increasing the size of the country would proportionally reduce ‘political acrimony and difference of opinion.’131 It remains that the perspective of the Dominion of Canada’s territorial expansion dominated the pre-Confederation negotiations between the four Maritime Provinces and United Canada. After 1867 there was strong debate in British Columbia and the Red River Colony; in 1870 the latter became the Province of Manitoba, and the Northwest Territories, until then controlled by the Hudson’s Bay Company, were annexed. In fact, the major difference between the thought of the Fathers of Confederation and that of the American founding fathers was the importance placed on new transportation and communications technologies. The construction of a continentwide railroad was the primary concern of the Fathers of Confederation, a number of whom had interests in the companies.132 The Quebec City Resolutions gave the federal government all powers necessary for controlling transportation infrastructure. The federal parliament thus had exclusive jurisdiction over steamship lines, railroads, ferries, canals, interprovincial telegraph companies, navigation, patents, and discoveries. In short, it was not federalism itself that guaranteed power, but federal sovereignty over transportation and communications. This approach, which makes technology and infrastructure omnipresent in constitutional discussions, dates back to Lord Durham himself, who

The Idea of Federalism among the Founding Fathers  41

was persuaded that technological developments would bring people together and, in turn, lead to constitutional changes.133 In that, this vision presaged the importance that technology would gain in the twentieth century as a factor in centralization and social standardization in federal regimes. Conclusion: History’s Surprises Political history is a rich source of ideas and practices, although it has been left untouched by Québécois and English-speaking Canadians, long persuaded that the legislation through which Canada was constituted holds little of value. It is also full of surprises as soon as one chooses not to take the legal texts at the letter but to plunge into the inextricably complex fabric of the discourses, influences, and events; new enigmas constantly arise as research progresses. Americans understood this long ago. They now know that, while their ancestors based the American Revolution on English concepts, once the colonial ties were broken, they had to become inventive in order to establish a federal republic, and when the 1787 Constitution was finally ratified the arrangements in no way resembled the initial intentions of their authors. The political regime thus established gave new meanings to the concepts of sovereignty, republic, and federalism. This was one of history’s surprises. The foundation of the Dominion of Canada had its share of surprises, too (see Table 1.1). In many respects, this foundation was Loyalist revenge on American revolutionary thought: it celebrated what the other had held in contempt, and remained faithful to English political language. Yet, by trying too hard to take distance from the Americans and to reproduce the spirit of the British constitution, the Fathers of Confederation created a strange political structure that they may not have completely understood. It combines federalism and English-style monarchy, a symmetrical division of powers and a Scottish-style asymmetrical arrangement to establish a new ‘empire.’ It is a polyhedron with facets that sometimes reflect confederalism, sometimes federalism, and sometimes legislative union. Thus, it is neither the quasi-federal state that K.C. Wheare predicted, nor a compact among some of Her Majesty’s autonomous provinces. What are the implications of this strange mixture? This is what we have to study in order to understand the present, and the future.

42 Marc Chevrier Table 1.1.  American and Canadian Attitudes in Founding Their Countries Americans

Canadians

Regime creation process

Revolution

Renewal of a counterrevolutionary transplant

Dominant ideological influences

Civic humanism; Country Party

Mercantile monarchy; Court Whigs

Composite nature of federal union

Confusion of the concepts of federalism and confederalism

Conflation of the terms federalism and confederalism

Debate over the nature of the regime: A combination of confederal features and a national government, or a new system?

The English-Scottish Union of 1707 and the 1840 Union of the Canadas, both considered to be federal regimes Debate over the nature of the regime: a complete federal union or a partially federal legislative union?

Sovereignty

Federalism and mixed government

Change of the classical concept of sovereignty (as one and indivisible) to a political system based on competing powers and the in-principle sovereignty of the people

Partisans and adversaries of the federal union shared the classical vision of sovereignty, although some glimpsed the possibility of a system that would divide it.

At first, the courts were called upon to play a minimal role in the balance of powers. Checks and balances and people’s vigilance were supposed to be sufficient.

The courts (of Canada or Britain?) were called upon to settle jurisdiction disputes between the two levels of government.

Federalism was integrated into mixed government based on the division of powers representing all people, without any social hierarchy (dominant vision).

Federalism was not really integrated into English-style mixed government, which remained faithful to the unitary Westminster model. Canada, a society without an aristocracy?

The Idea of Federalism among the Founding Fathers  43 Table 1.1.  American and Canadian Attitudes in Founding Their Countries (concluded) Federalism and power

Federalism was considered a mechanism for constantly increasing power thanks to factions’ mutual neutralization. The American federal state was from the start seen as the beginning of an empire destined to undergo territorial expansion through the admission of new states. Agrarian republicanism fostering territorial expansion.

Canada was also considered to be the beginning of a new empire that was destined to grow in accordance with the decisions of Canadian or British authorities. Federal sovereignty over transportation and communications guaranteed the government’s power. Technology united people and prepared the way for centralization.

notes   1 The publication of an anthology of Canada’s founding debates, edited by Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner in 1999 was probably a turning point. In their introduction, the authors state their ambition to show the intellectual dignity of the debates. Débats sur la fondation du Canada (hereafter Débats) (Quebec: Les presses de l’Université de Laval, 2004), 1.   2 Robert C. Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991), 20.   3 Edmond Orban, Fédéralisme: Super État fédéral? Association d’États souverain? (Montreal: Hurtubise, 1992), 42–3.   4 James Wilson wrote in 1774: ‘All the different members of the British Empire are distinct States, independent of each other, but connected together under the same sovereign right of the same crown.’ Quoted in Michael Zuckert, ‘Natural Rights and Imperial Constitutionalism: The American Revolution and the Development of the American Amalgam,’ Social Philosophy and Policy 22/1 (2005): 42.   5 Walter H. Bennett, American Theories of Federalism (Tuscaloosa: University of Alabama Press, 1964), 24.   6 Ibid., 37.

44 Marc Chevrier   7 Orban, Fédéralisme, 31. James Tully also alludes to confederal alliances among Aboriginal nations before Europeans arrived in America. See his Strange Multiplicity. Constitutionalism in an Age of Diversity (New York: Cambridge University Press, 1995), 119.   8 Louis Nourry, ‘L’idée de fédération chez Étienne Parent,’ Revue d’histoire de l’Amérique française 26/4 (1973): 535.   9 See also the twelve resolutions of the Assemblée de Saint-Ours, 1837, in Andrée Ferretti and Gaston Miron, eds., Les grands textes indépendantistes, Écrits, discours et manifestes québécois, 1774–1992 (Montreal: L’Hexagone, 1992), 44–51. 10 Jean-Charles Bonenfant, La naissance de la Confédération (Montreal: Leméac, 1969), 25. 11 Peter J. Smith, ‘The Dream of Political Union: Loyalism, Toryism and the Federal Idea in Pre-Confederation Canada,’ in Ged Martin, ed., The Causes of Canadian Confederation (Fredericton: Acadiensis Press, 1990), 148–71. 12 See Nourry, ‘L’idée de fédération,’ 533–7. 13 Des provinces de l’Amérique du Nord et d’une Union fédérale (Quebec: Presses à vapeur de J.T. Brousseau, 1858). 14 In fact, aside from the case of New Zealand, the parliamentarians had no historical example of a federal monarchy. In a study published in 1865, in which he reviews examples of confederal associations since Antiquity, D’Arcy McGee saw New Zealand’s confederation as an inspiring model, particularly since it reconciled monarchy and colonial status and seemed to have ensured New Zealand’s prosperity. Westminster had divided the colony into six provinces, each governed by an elected local superintendent and a legislative assembly. The federal government, led by the governor, also had two houses, and the senators in the Upper House were appointed for life. A list of competencies set out federal jurisdiction, but provincial powers were not specified. The governor in council could annul the election of a local superintendent, give him orders or repudiate provincial legislation. See Thomas D’Arcy McGee, Notes sur les gouvernements fédéraux (Ste-Hyacinthe: Des presses à pouvoir du Courrier de SainteHyacinthe, 1865), 62. See also Alexander Morris, Parliamentary Debates on the Subject of Confederation of the British North American Provinces (hereafter Parliamentary Debates) (Quebec: Provincial Parliament of Canada, Hunter, Rose and Co., Parliamentary Printers, 1865), 440. 15 Frederick Vaughan, The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic (Montreal and Kingston: McGill-Queen’s University Press, 2003), 107; Bonenfant, La naissance de la Confédération, 49. 16 Frank L. Shoell, Histoire des États-Unis (Paris: Payot, 1985), 109.

The Idea of Federalism among the Founding Fathers  45 17 Hannah Arendt, On Revolution (New York: Viking, 1963), 46 and 60. 18 Ibid., 146. 19 Carl J. Friedrich, Constitutional Government and Democracy (Boston: Ginn, 1950), 163. 20 Donald Creighton, John A. Macdonald: Le Haut et le Bas-Canada, vol. 1 (Montreal: Les Éditions de l’Homme, 1981), 101. 21 See the debates collected in Débats, chapters 11 and 12. 22 John A. MacDonald described the constitutional process in 1865 as a ‘great constitutional change, this peaceful revolution’ after having praised Canada’s connection with Great Britain, thanks to which ‘we enjoy […] the privileges of constitutional liberty according to the British system.’ Hector Louis Langevin concurred: ‘We are in the midst of a Great revolution, but a revolution of which peace is the guiding spirit,’ in Parliamentary Debates, 44 and 363. 23 Arendt, On Revolution, 58. 24 Ibid., 111. 25 Vaughan, Canadian Federalist Experiment, 111. MP Joly, opposed to Confederation, argued that a federation had to be republican. See Parliamentary Debates, 353–6. 26 Arendt, On Revolution, 291. 27 Senator John Ross swept away references to Antiquity: ‘It is no use to look for a better form to the constitution of the ancient republics which have passed away, their having ceased to exist being of itself proof enough of their not being adapted to our needs,’ in Parliamentary Debates, 74. 28 Louis-Georges Harvey, Le Printemps de l’Amérique française (Montreal: Boréal, 2005). 29 Dick Howard, The Birth of American Political Thought 1763–87 (London: Macmillan, 1990), 23–4. 30 Gordon S. Wood, The Creation of the American Republic 1776–1787 (Chapel Hill: University of North Carolina Press, 1968). See also Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, 1967). 31 See also John G. Pocock, Virtue, Commerce and History (Cambridge: Cambridge University Press, 1985). 32 Stéphane Kelly, La petite loterie: Comment la Couronne a obtenu la collaboration du Canada français après 1837 (Montreal: Boréal, 1997). Peter Smith, The Ideological Genesis of Canadian Confederation, Doctoral dissertation, Ottawa, Carleton University, 1983. 33 See Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Atlantic Monthly Press, 1966), 40–53.

46 Marc Chevrier 34 Martin Diamond, ‘What the Framers Meant by Federalism,’ in William A. Schambra, ed., As Far as Republican Principles Will Admit: Essays by Martin Diamond, (Washington, DC: AEI Press, 1992), 93–107. See also Thierry Chopin, La république ‘une et divisible’: Les fondements de la fédération américaine (Paris: Plon, 2002), 24–31. 35 Alexander Hamilton, John Jay, and James Madison, The Federalist, no. 39. 36 See Chopin, La république, 28–9. 37 Parliamentary Debates, 32. 38 Ibid., 41. 39 Ibid., 87. 40 Ajzenstat, Débats, 320. 41 In his description of the Union regime, James Careless spoke several times of quasi-federalism and a quasi-federal structure. See The Union of the Canadas (Toronto: McClelland and Stewart, 1967), 209–10. 42 Moreover, as soon as ministerial accountability was established, Canadian politics took a consociational form, in the sense of the theories developed by the Dutch political scientist, Arend Lijphart. See Garth Stevenson, Community Besieged: The Anglophone Minority and the Politics of Quebec (Montreal and Kingston: McGill-Queen’s University Press, 1999), 14. 43 Parliamentary Debates, 30. According to Dunkin, an adversary of the confederation plan, the union was federal from 1848 on, ibid., 503. 44 See Moya Jones, Le Royaume désuni (Paris: Ellipses, 2003). 45 See T.M. Devine, The Scottish Nation 1700–2000 (London: Penguin, 1999), 11–14. 46 Concerning the terms of the 1707 Union Treaty, see Jacques Leruez, L’Écosse, Vieille Nation, Jeune État (Crozon: Armeline, 2000), 32–3, and ‘Union of 1707,’ in Michael Lynch, ed., The Oxford Companion to Scottish History (Oxford: Oxford University Press, 2001), 604–8. See also Lindsay Paterson, The Autonomy of Modern Scotland (Edinburgh: Edinburgh University Press, 1994), 22–45. 47 Also won by the Court Party’s corruption, the Anglo-Irish union of 1801 was less complete than that with Scotland. Ireland retained its lord-lieutenant and court, but lost its parliament; however, it obtained neither free trade, nor any protection for Catholics, who were excluded from government. See Roy F. Foster, Modern Ireland 1600–1972 (London: Penguin, 1988), 282–6. 48 Macdonald spoke eloquently about Scotland: ‘the relations between England and Scotland to that which obtains between England and Canada. The union between them, in matters of legislation, is one of a federal character, because the act of union between the two countries provides that

The Idea of Federalism among the Founding Fathers  47 Scottish law cannot be altered, except for the manifest advantage of the people of Scotland. […] Thus, we have in Great Britain, to a limited extent, an example of the working and effects of a federal union, as we might expect to witness one in our own Confederation.’ Macdonald even went so far as to say that the Scottish representatives at Westminster had a veto over legislation concerning Scotland. See Parliamentary Debates, 31. See also Alexander Mackenzie, ibid., 432–3. According to D’Arcy McGee, the British Isles were an example of a confederation, ibid. Moreover, Ged Martin holds that Lord Durham saw the 1707 Union Treaty as a precedent justifying the maintenance of French-Canadian institutions within a legislative union, and that it was not incongruous in Great Britain to consider the union as a federal union in spirit. See his Britain and the Origins of Canadian Confederation, 1837–67 (Vancouver: UBC Press, 1995), 148. After 1867 English ideas about federalism and Scotland’s status changed. In 1885, e.g., Albert V. Dicey, made a distinction between a political union formed by a federal state and the political unity that is characteristic of the unitary state, which had been Scotland’s since 1707. See his Introduction to the Study of the Constitution (London: Macmillan, 1961), 141–2. 49 Joseph Perreault, an opponent of Confederation, also linked the plan to the English–Scottish union, as well as the English–Irish union, although he considered the 1707 union as suicide imposed on the Scottish people by corruption. See Parliamentary Debates, 603–5. See also Matthew Cameron’s 18 March 1865 contribution, which draws an interesting parallel between the process through which the Scottish and Irish unions were formed, and that of Confederation, ibid., 970–2. 50 Arthur Herman, How the Scots Invented the Modern World (New York: Three Rivers Press, 2001), 368. 51 Lord Carnarvon said, on 19 February 1867: ‘Lower Canada, too, is jealous, as she is deservedly proud of her ancestral customs and traditions; she is wedded to her particular institutions and will enter this union only upon the distinct understanding that she retains them […] The Coutume de Paris is still the accepted basis of their civil code, and their national institutions have been alike respected by their fellow-subjects and cherished by themselves. And it is with these feelings and on these terms that Lower Canada now consents to enter this Confederation.’ Hangar’s Parliamentary Debates, vol. 185, 1 Feb. to 15 March 1867 (hereafter London Parliamentary Debates) (London: Cornelius Busk Printer for Hansard Publishing), 568. These statements, in fact, confirm the principle established from the time of the Quebec Act, 1774, that reintroduced French private law and thus ensured the continuity of the colony’s legal institutions, which had been

48 Marc Chevrier suspended by Royal Proclamation in 1763. The scope of the Quebec Act, however, should not be exaggerated: it did not restore all of French private law and provided for exceptions that made it possible to apply English law in the colony. These provisions established the components of a long-term policy of assimilation of French Canadians. See Evelyn Kolish, Nationalismes et conflits de droit: le débat du droit privé au Québec, 1760–1840 (Montreal: Hurtubise, 1994), 45–6. 52 See Matthew Cameron, 467, and Christopher Dunkin, 514–15, in Parliamentary Debates. 53 He said: ‘Lower Canada has been so tenacious of its civil code that it is laid down in the project before us that the Federal Parliament shall not even be able to suggest legislation by which it may be affected, as it will have the right to do so with other provinces,’ in Parliamentary Debates, 575. 54 Ibid., 394. 55 French doctrine did not yet distinguish between federation and confederation either. See Dimitrios Karmis, ‘Pourquoi lire Proudhon aujourd’hui? Le fédéralisme et le défi de la solidarité dans les sociétés divisées,’ Politique et Sociétés 21/1 (2002): 47. 56 Of course, in addition to Mill, a number of theoretical texts on federalism could have influenced the Fathers of Confederation, e.g., History of Federal Government (London: Macmillan, 1863), by Edward A. Freeman. See Vaughan, Canadian Federalist Experiment, 94–7. 57 John Stuart Mill, Utilitarianism, Liberty, Representative Government (London: J.M. Dent, 1972 [1910]), 378. 58 Even Macdonald described the Quebec City Resolutions as a treaty between the different provinces. See Parliamentary Debates, 32; see also John Rose, ibid., 409. 59 Jean Bodin, Les Six livres de la République (1576), vol. 1 (Paris: Fayard, 1986), 10 and 11. See also Olivier Beaud, La Puissance de l’État (Paris: Les Presses universitaires de France, 1994), 144–7. 60 See William Blackstone, ‘Of the Parliament,’ in Commentaries on the Laws of England, Book 1, chapter 2. Facsimile of the first edition of 1765–69 (Chicago: University of Chicago Press, 1979), 142–82. 61 See Thomas Grey, ‘Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,’ Stanford Law Review 30/5 (1978): 858–9. 62 Wood, Creation of the American Republic, 402. See also Bailyn, Ideological Origins of the American Revolution, 198. 63 Wood, Creation, 353. 64 Hamilton, intervention of 18 June 18, in Max Farrand, ed., The Records of

The Idea of Federalism among the Founding Fathers  49 the Federal Convention of 1787, vol. 1 (hereafter Records) (New Haven: Yale University Press, 1966), 297. 65 Chopin, La république, 73; our translations throughout. 66 Madison, interventions of 21 June 1878, in Farrand, ed., Records, 356–8 and 363–4. 67 Chopin, La république, 77. 68 Ibid., 113. 69 Ralph Kitcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: Penguin, 2003), 63. 70 Chopin, La république, 147. 71 Ibid., 149. 72 The Federalist, no. 39. 73 Chopin, La république, 168. 74 Arendt, On Revolution, 152. 75 Hamilton, The Federalist, no. 32. 76 The Federalist no. 42. 77 Ibid., no. 46. 78 Ibid., no. 44. 79 Ibid., no. 39. 80 Ibid., no. 78. 81 Chopin, La république, 301–2. 82 Ibid., 303. 83 Ibid., 304–6. 84 Gerald Browne, Documents on the Confederation of British North America (hereafter Documents) (Toronto: McClelland and Stewart, 1969), 94–5. 85 Parliamentary Debates, 34. 86 John Rose said: ‘There can, therefore, be no difficulties under the scheme between the various sections – no clashing of authority between the local and the central governments in this case, as there has been in the case of the Americans. The powers of the local governments are distinctly and strictly defined, and you have no assertion of sovereignty on the part of the local governments, as in the United States,’ Parliamentary Debates, 403. Rose claimed to draw on Madison and his initial support for giving the American Congress a veto over state legislation. See also Alexander Mackenzie, ibid., 437, and John Scoble, ibid., 912. 87 Parliamentary Debates, 33. 88 Ibid., 34. 89 Jennifer Smith, ‘Canadian Confederation and the Influence of Americain Federalism,’ Canadian Journal of Political Science 21/ 3 (1988): 450–1. 90 After having advocated, in 1859–60, a federal union plan that would have

50 Marc Chevrier

made the provinces the primary depositories of sovereignty, George Brown and his Globe newspaper in Toronto changed their minds and, in 1864, argued for a union that would give sovereignty to the central government, and limited, delegated powers to the provinces. See James Careless, Brown of the Globe, vol. 2 (Toronto: Macmillan, 1963), 167–8.   91 Macdonald: ‘The General Government assumes towards the local government precisely the same position as the Imperial Government holds with respect to each of the colonies now.’   92 Joseph Perreault, Parliamentary Debates, 630.   93 Parliamentary Debates, 690. He also said: ‘Federalism means the union of certain states, which retain their full sovereignty in everything that immediately concerns them, but submitting to the general government questions of peace, of war, or foreign relations, foreign trade, customs and postal service,’ ibid., 858.   94 Ibid., 356.   95 In fact, the political doctrine available in the British world at the time was already starting to see that federalism involved dividing sovereignty between two separate levels of government. See nn56–7.   96 Vipond, Liberty and Community, 24–36.   97 Arthur I. Silver, The French Canadian Idea of the Confederation 1864–1900 (Toronto: University of Toronto Press, 1982), 43.   98 Parliamentary Debates, 697. Cauchon understood the United States in the same way.   99 Éric Bédard, Le moment réformiste: La pensée d’une élite canadienne-française au milieu du XIXe siècle, Doctoral dissertation, Department of History, McGill University, 2004, 90–146. 100 Parliamentary Debates, 692. 101 Ibid., 690. See also Cauchon, Parliamentary Debates, 700. 102 Browne, Documents, 95. 103 The Federalist, no. 51. 104 Chopin, La république, 293. See also Wood, Creation, 577–80. 105 Russell Kirk, whose work, The Conservative Mind (Chicago: Henry Regnery, 1953), marked the birth of neo-conservative thought in the United States, portrays Adams as his country’s rightful heir of Edmund Burke. Concerning the concept of balance of powers advocated by Adams, Kirk writes: ‘Thus power is distributed justly among the chief interests in society; the ineradicable natural aristocracy, […] is recognized and to some extent moulded into a separate body by the institution of a senate; the passion of the moment and the tyranny of the omnipotent legislative organ are checked by constitutional devices,’ 93–4.

The Idea of Federalism among the Founding Fathers  51 106 Chopin, La république, 296. 107 Ibid., 297. 108 See the famous Chapter VI of Polybius’ The Histories, which postulates the superiority of a mixed constitution based on royalty, aristocracy, and democracy, in comparison with constitutions based on a single principle. 109 See Wood, Creation, 598 and 599. 110 The Federalist, no. 51. 111 Pierre Tousignant, ‘L’acte de naissance de la démocratie représentative au Canada,’ Forces Magazine, no. 96 (Winter 1991–92), 4–10. 112 Browne, Documents, 98. 113 Ibid., 133. 114 Parliamentary Debates, 37. 115 George Brown, Débats parlementaires, 89. 116 See Dorion, Parliamentary Debates, 865. 117 See Christopher Dunkin, Parliamentary Debates, 499 and 501, and Smith, ‘Canadian Confederation,’ 456. 118 Jennifer Smith, ‘Intrastate Federalism and Confederation,’ in Stephen Brooks, ed., Political Thought in Canada: Contemporary Perspectives (Toronto: Irwin, 1984), 270. 119 Wood, Creation, 610. 120 Laurent Bouvet and Thierry Chopin, Le Fédéraliste: La Démocratie apprivoisée (Paris: Michalon, 1997), 32–3. 121 Arendt, On Revolution, 152. 122 Ibid., 150. 123 As the historian Daniel Boostin notes, the federalists saw the remoteness of the federal government, its distance with respect to a huge land, as a means of protecting American federalism. See L’esprit d’exploration. L’Amérique et le monde, jadis et maintenant (Paris: Gallimard, 1979), 85–7. 124 Niall Ferguson, Colossus: The Rise and Fall of the American Empire (London: Penguin, 2004), 33–5. 125 The Federalist, no. 22; my emphasis. 126 Dick Howard, Birth of American Political Thought, 209. 127 Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 282–4. 128 Parliamentary Debates, 84. Langevin spoke of ‘one of the greatest empires in the world,’ ibid., 392, while Joseph Perreault criticized his opponents for wanting to establish a new empire that would compete with the ‘neighbouring powerful republic,’ ibid., 597. 129 George Brown also shared this position. See Careless, Brown of the Globe, 232.

52 Marc Chevrier 130 Section 146, Constitution Act, 1867. 131 Charles Tupper, House of the Assembly of Nova Scotia, 28 March 1864, quoted in Ajzenstat et al., Débats, 139. 132 According to John A. Macdonald: ‘The railroad was not, as stated by Mr Holton, a portion of the Constitution, but was one of the conditions on which the lower provinces agreed to enter in the constitutional agreement with us,’ in Parliamentary Debates, 19. 133 John A. Rohr, ‘Current Canadian Constitutionalism and the 1865 Confederation Debates,’ American Review of Canadian Studies 28/4 (1998): 428–9.

2 The Multiple Voices of the Federal Tradition and the Turmoil of Canadian Federalism* dimitrios karmis

In a 1995 comparative study of federalism, John Agnew identified a number of tendencies related to federalism, and especially the propensity of federations to be in ‘perpetual crisis.’ John Agnew argued that three main factors can help to explain this tendency: (1) federations are generally the result of compromises, which means that they are ‘usually not everyone’s first choice’;1 (2) there is a tension, inherent to the structure of federations itself, between the central government’s tendency to impose common values and standards and the efforts made by federated entities to protect their own sphere of powers; and (3) ‘the growth of “big” (usually central) government in most federal states.’2 Agnew’s analysis is interesting, but it seems to neglect – as many recent studies do – a very important factor in the Canadian case, namely, the tension between different normative conceptions of federalism. Since the failure of the Charlottetown Accord in 1992 and the 1995 referendum, many Canadian political analysts and political actors have argued that it is necessary to give up normative discussions in favour of a more functional, pragmatic, and non-constitutional approach to federalism. The suggested approach favours administrative agreements and ‘collaboration’ between the different orders of government.3 Yet, it seems to me, normative discussions are necessary both for our understanding of Canadian federalism and for its adequate functioning. Indeed, as Samuel LaSelva and Richard Vernon note, recognizing the important role played by power relations and pragmatic compromises in the development of federal arrangements is by no means incompatible with recognizing the importance of an analysis of the underlying values of federal arrangements. In other words, ‘we can distinguish between origin and value.’4 Moreover, as Wayne Norman emphasizes,

54 Dimitrios Karmis

a federal arrangement strictly based on material and practical advantages would be threatened as soon as it appears less advantageous to one or several partners in the federation.5 More generally, I should add, the negotiating positions of federal partners are always based on normative assumptions; they are, at the very least, based on normative assumptions about the identity of each component of a federation or about the type of relations that these components should have between themselves. Consequently, it would be unrealistic to think that, in the long term or even in the medium term, we can avoid debates over the normative foundations of federal arrangements.6 Although debates over the normative bases of federalism have not always been seen with as much suspicion as they are today, and normative issues have, in fact, been part of Canadian constitutional debates since the 1960s, political actors have often been inclined to deny the diversity of normative conceptions of federalism and to portray themselves as advocates of the only ‘true federalism.’ We can find a very revealing example of this tendency in Lester B. Pearson’s statement guiding the orientation of his government in the constitutional conference of 1968: ‘The Government of Canada believes, as we are sure virtually all Canadians do, that this country can achieve its goals only under a federal system […] The Government of Canada rejects both centralization and fragmentation as alternatives to federalism […] Canadian federalism must be a balance between these extremes, and we should expect to find this sense of balance expressed in our constitutional arrangements.’7 There are at least three main problems raised by this statement by the former prime minister. First, it presents federalism as the only suitable choice for Canada, when it is Canada itself or its specific type of federalism that an increasing number of Québécois are contesting. Second, Pearson defines federalism in a quite partial and arbitrary way as the middle ground embodied by the Canadian government’s position, thereby discrediting provincial demands – particularly those of Quebec in the context of the 1968 constitutional conference – and associating them with extremist and fragmenting forces. Finally, and more fundamentally, Pearson’s statement dismisses the fact that there is a plurality of normative conceptions of federalism, and overlooks the fact that this plurality of normative conceptions has been a crucial source of conflicts and disagreements ever since Confederation. Pearson’s tendency to blur the distinction between federalism and the central government’s stance eventually became common practice during the Trudeau era. This is not

Multiple Voices and the Turmoil of Canadian Federalism  55

only problematic because it overlooks the diversity of voices espousing the federal tradition, but also, and perhaps more importantly, because it prevents us from seeing the full extent of the crisis of Canadian federalism and from finding new and fruitful ways to overcome it.8 The issue of the normative foundations of federal arrangements, or the ethics of federal arrangements, rests on an assumption that is often forgotten in the debates concerning the relevance of establishing or maintaining a federal system: an institutional arrangement, whatever it may be, is never an end in itself. The value of establishing or maintaining federal institutions rests, in addition to the pragmatic considerations, on the ability of these institutions to achieve a certain number of normative objectives. What are the main normative ends associated with federal arrangements? Although the history of modern political thought is dominated by the discussion and defence of unitary states, advocates of a wide variety of normative conceptions of federalism should not be neglected. The history of modern political thought provides us with three main types of response to the issue of the normative ends of federal arrangements: universalist federalism, communitarian federalism, and pluralist federalism.9 There are major differences between these three types of federalism, but they nevertheless belong to the same federal tradition insofar as they all converge in their quest for an alternative to the modern dominance of the unitarystate model. This chapter will present the main normative conceptions of federalism that have marked the history of modern political thought. This will provide us with the opportunity to shed some light on some oftenoverlooked aspects of the crisis of Canadian federalism. The chapter has three parts; each examines and analyses the normative bases of each of the three main currents of the modern federal tradition. Universalist Federalism The historical sources of universalist federalism can be traced back to two important developments in the eighteenth century. These developments have converged to confer a moral superiority to common central institutions over the institutions of federated states. First, in the early eighteenth century, the Abbé de Saint-Pierre’s Projet pour rendre la paix perpétuelle en Europe made a very influential argument. According to him, states are less likely to go to war with each other if they are bound by common interests and if disagreements are

56 Dimitrios Karmis

debated within common institutions.10 This argument would eventually take many forms, but the fact remains that it confers, more or less explicitly, a moral superiority to common institutions. This moral superiority of common institutions is based on the assumption that these institutions have the positive potential to pacify the relations between their constituent units – the federated states – that are mostly driven by particularistic and bellicose tendencies. Second, the transition from the Articles of Confederation of 1781 to the new U.S. Constitution of 1787 (which came into force in 1789) gave rise to a new and more integrated form of federal arrangement.11 James Madison, Alexander Hamilton, and John Jay were among the most influential proponents of this model. They emphasized the importance of a strong central government for the promotion of individual liberty. Again, this idea would take many shapes, notably with Tocqueville and Trudeau, but it confers, more or less explicitly, a moral superiority to strong common (central) institutions. According to universalist federalists, confederations and highly decentralized forms of federations make federated states vulnerable to their worst tendencies – particularism, fragmentation, factionalism, and disorder – and often lead to tyranny. Simply put, it seems that universalist federalists give so much moral weight to common institutions because they are convinced that these institutions are more universal in terms of values and identity. This formulation is probably too simplistic, however, because it may lead us to think that universalist federalists ultimately aim at a complete integration within a unitary state. Although such a transitory federalism exists, it is by no means the dominant position among universalist federalists. Their typical position is rather that the existence of different orders of government and the dynamic of institutional weight and counterweights between the central government and federated units are essential to promote and secure the identity and values that they favour. In fact, if universalist federalists often give the impression that they are unitarists in the disguise of federalists, it is, among other things, because they consider that particularism, which they associate with federated units, is historically and sociologically dominant. Indeed, it is precisely because there is such a ‘natural’ tendency towards fragmentation that universalist federalists feel compelled to insist on the virtues of central institutions and on the political and institutional necessity to subordinate, to various degrees, federated units to central institutions. To fully understand this position, it is probably helpful to briefly review the ideas of Madison, Hamilton, and Jay12 on the matter, as well as the ideas of Tocqueville and Trudeau.

Multiple Voices and the Turmoil of Canadian Federalism  57

Universalist federalists are usually individualist liberals.13 Their central thesis establishes a direct connection between a concern for the defence of a fundamental and universal value, individual liberty, and federalism. The initial formulation of this thesis can be found in The Federalist: any government can be taken over by the interests of a faction, and can thereby jeopardize individual liberty. According to Publius, a mere functional separation of powers is insufficient to counteract the potential for tyranny inherent to any government. It must be supplemented by a territorial separation of powers between several orders of government: ‘Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.’14 Almost half a century later, Tocqueville would reformulate this idea by depicting the principle of ‘divided sovereignty’ as one of the main advantages of federations. Governments in a federation are less powerful because none of them possesses all the powers. This helps to prevent governmental infringement upon individual liberties, since any such infringement is likely to meet the resistance of another order of government. For Tocqueville, this potential counterweight acts as a powerful deterrent.15 Trudeau shares with Tocqueville and Publius a belief in ‘federalism as a superior form of government.’ Federalism can ‘act as a counterbalance,’ and thus, in general, it provides a stronger foundation for liberty.16 Now, if the presence of counterweights between different orders of government is so crucial for the protection of fundamental liberties, we may legitimately ask why universalist federalists tend to advocate the moral superiority of common institutions and to subordinate federated units to common institutions. Universalist federalism rarely prescribes the subordination of federated units in an explicit manner, but Alexander Hamilton is an exception. In response to the critics of the new Constitution of 1787, who argued that it led to a mere ‘consolidation’ rather than to a federal arrangement, Hamilton provided a very minimalist definition of what he calls a ‘confederate republic’: ‘The definition of a confederate republic seems to be an “assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy’ (emphasis added).17

58 Dimitrios Karmis

In other words, for Hamilton, ‘in every rational import of the terms,’ ‘the idea of a federal government’18 merely requires the presence of two constitutionally defined orders of government where none can abolish the other. Hamilton’s definition gives no serious consideration to whether state governments are subordinated to the central government rather than coordinated with it.19 What may be the basis for this definition of federalism? Such a definition rests essentially on three assumptions. First, it rests on the assumption that, from a historical and sociological point of view, the tendency towards particularism – perceived as a threat to individual liberty – always seems to be predominant. In federal arrangements, this pervasive tendency towards particularism is reinforced by the institutions of federated entities (which tend to reinforce more obvious and ‘natural’ feelings of attachment to communities that are smaller and closer to individuals), and attenuated by central institutions (which generate less obvious and ‘natural’ feelings of attachment to larger communities). This provides the basic justification for insisting so much on the merits of central institutions and on the necessity to subordinate, politically and institutionally, federated entities to central institutions. For example, Hamilton writes: ‘It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.’20 Hamilton adds that this tendency is reinforced by the fact that federal arrangements always attribute powers related to local interests to federated entities, while powers over general matters and matters that are more remote from the immediate interests of citizens belong to the central government.21 Tocqueville reformulates this idea in a clear and elegant manner when he writes that ‘state patriotism’ is naturally stronger than ‘federal patriotism,’ because ‘the Union is a vast body, which presents no definite object to patriotic feeling,’ while ‘the forms and limits of the state are distinct and circumscribed, since it represents a certain number of objects that are familiar to the citizens and dear to them all.’22 For Tocqueville, federations have an inherent tendency towards dismemberment or, at least, a tendency towards instability and the progressive weakening of central governments. Trudeau considers

Multiple Voices and the Turmoil of Canadian Federalism  59

that ‘the history of civilization is a chronicle of the subordination of tribal “nationalism” to wider interests.’23 This broader sense of belonging can be generated only by the institutions of the central government. That being said, it is obvious that universalist federalism is hostile to asymmetrical federalism. Universalist federalists regard the attribution of a particular status to a federated unit with the utmost suspicion. They interpret such recognition as a concession to particularism and a threat to ‘national’ unity and individual liberties. The second main premise on which the Hamiltonian definition of federalism rests has to do with a specific way of conceiving the ‘nation’ and the ‘people.’ To counterbalance the predominant tendency towards particularistic attachments, universalist federalists tend to conceive federations as mononational and to think that central institutions are the only ones capable of representing the whole ‘nation’ or ‘people.’ For instance, Jay depicts ‘the people of America’ as being composed of ‘people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.’24 In addition to exaggerating the homogeneity of the population at the time of the thirteen states, Jay is completely silent on the tensions between the North and the South, on the fate of Black people, and on the resistance of indigenous peoples. As Will Kymlicka notes, what the American founding fathers and their successors sought to do – particularly during the westward and southward expansion period – was to secure, through different means, the dominance of the white, Anglo-Saxon, Protestant (WASP) nation in each federated state. ‘As a result, writes Kymlicka, none of the fifty states can be seen as ensuring self-government for a national minority in the way that Quebec ensures self-government for the Québécois.’25 Tocqueville, while more nuanced than Jay on the socalled homogeneity of the American ‘people’ and ‘nation,’ was nevertheless convinced, just as the founding fathers were, of the necessity to reinforce national unity and to avoid any significant asymmetry in the linguistic and cultural composition of the states. The spectre of a situation like that of Switzerland at the time served as an example of what was to be avoided.26 Trudeau’s response to the existence of cultural and linguistic asymmetry in Canada was, to a large extent, in line with such reasoning. From the 1960s onward, Trudeau’s efforts were focused on building a bilingual and multicultural nation from coast to coast. When referring to the different minorities constituting the Canadian nation, he rejected ‘any identification between [one of these minorities] and a

60 Dimitrios Karmis

government in particular,’27 because he considered that making such an identification proceeds from a collectivist conception of rights and from an ethnic conception of the state. According to Trudeau, this way of reasoning would inevitably lead to ‘jingoism and intolerance’ and to the ‘partition of the Canadian territory.’28 Consequently, he preferred that rights be ‘assigned directly to persons rather than groups.’29 The outcome of such a conception of rights – rights that are strictly individual and portable from coast to coast – is a pan-Canadian nation and a central government conceived as the best representatives of rights-bearing individuals and as the surest guarantees against the undue influence of provincial (or any other) particularisms. The third and last premise of the Hamiltonian definition of federation shared by universalist federalists is a monistic and imperialistic conception of identity. For Trudeau, as for Publius and Tocqueville, the subordination of federated identities – seen as particularistic identities – to a national identity defined by central institutions is concomitant with the political and institutional subordination of federated entities to the central government. Universalist federalists share a considerable reluctance to recognize that the different particular identities that matter to citizens should be given moral weight and to acknowledge the possibility of a peaceful coexistence between these different identities. Communitarian Federalism Communitarian federalism is not the complete opposite of universalist federalism, but it is nevertheless opposed to it in many respects. The historical sources of communitarian federalism can be traced back to both the confederate republics praised by Montesquieu and to the response provided by some states – mostly Southern states – to the growing domination of universalist federalism in the United States in the first half of the nineteenth century. John C. Calhoun was the main theoretician of this response. In contrast with universalist federalism, communitarian federalism tends to attribute a moral superiority to the institutions of federated states over the institutions of the central government and to support a political and constitutional subordination of central institutions. This inclination in favour of federated states has been justified on various grounds by different theorists. For Montesquieu and for some proponents of the compact theory, the justification is grounded in a concern for the defence of republican virtues, while for others, like Calhoun and some other proponents of the compact theory, the justifi-

Multiple Voices and the Turmoil of Canadian Federalism  61

cation is rooted in a concern for community interests (in the broad sense of the term). For Montesquieu, a confederation is essentially a means to achieving republican purposes. In other words, confederation is meant to secure the survival of small republics (the federated entities). Indeed, a confederation provides two important advantages to small republics. On the one hand, a confederation provides the unity necessary to protect small republics from being destroyed by a more powerful external force. On the other hand, a confederation prevents a republic from becoming too large. Past experience has shown that republics cannot expand beyond a certain point without becoming corrupted from the inside. In sum, a confederation is a ‘society of societies,’ whose end is to preserve the republican character of its constituent elements.30 From this perspective, central institutions – the ‘common council’ – are the result of a compact between federated entities and are composed of representatives from the federated entities.31 This helps to explain why the powers given to central institutions are always limited and conditional. Moreover, when we consider the importance that Montesquieu gives to the ‘general spirit’ of each nation, it is not surprising to see that the type of confederation he has in mind is open to asymmetry, except with respect to the republican character of its components. In Canada this kind of communitarian federalism, the republican type, has long been overlooked. However, in recent years, a growing number of scholars have shown interest in these ideas – notably Louis-Georges Harvey, with his study of the republicanism of the 1837 patriots – and have participated in their revival. For instance, Harvey concludes his latest book by emphasizing that the ‘dominant analyses of federalism in Quebec are certainly not inspired by the British parliamentary tradition, which only provides examples of legislative unions.’32 According to Harvey, analyses of federalism in Quebec are largely drawn from the doctrine of states rights elaborated by Jeffersonian Democrats, who ‘had nurtured the patriots’ representation of a very decentralized federalism in the United States,’33 and whose roots can be traced back to Montesquieu. In the 1850s and 1860s this conception of federalism can be found in the speeches of the Rouges in Lower Canada and the Reformists in Upper Canada.34 Although Calhoun agreed with a more extensive integration and saw federal arrangements in less strictly instrumental terms than did Montesquieu35 and most republican federalists, he nevertheless developed a radical critique of Publius’ universalist federalism. In contrast

62 Dimitrios Karmis

to Madison, Hamilton, and Jay, who thought that the threat of tyranny essentially came from federated states, Calhoun insists on states rights as a means to protect territorialized minorities from central institutions and from the tyranny of the majority. A summary of Calhoun’s conception will shed some light on the fundamental characteristics of a communitarian federalism rooted in ‘interests’ understood in a broad sense (i.e., interests that include considerations related to identity, defined in cultural, linguistic, national, economic, or territorial terms). Calhoun is a generally overlooked thinker of the federal tradition. The place of Calhoun – a native of South Carolina and an advocate of both the doctrine of states rights and slavery – in the history of ideas has been undermined, to a significant extent, by the defeat of the Southern states in the American Civil War. Yet, Calhoun’s work remains one of the most thorough expositions of communitarian federalism. At the beginning of his political career, John Calhoun was an American nationalist – he spent most of his forty-year-long career (from 1810 to his death in 1850) in central institutions, notably as vice president of the United States from 1825 to 1832 – and he could hardly be accused of seeing the federation as the simple instrument of states. But his political discourses and his two books are essentially focused on the rights of states. Calhoun’s insistence on states rights is founded on a communitarian form of constitutionalism. The bases of his communitarian constitutionalism are set out in A Disquisition on Government, a general treatise in which Calhoun does not discuss specifically the issue of federalism. For Calhoun, a government is rooted in the social and individual feelings of human beings. On the one hand, human beings have always had a tendency to group together because they feel they need each other to fully develop their faculties. On the other hand, human beings have always had stronger feelings for what affects them directly than for what affects them indirectly, that is, through other human beings. This provides the basis for the emergence of conflicts and for the establishment of a government that can pacify society and secure the conditions of its development. The establishment of a government is made more complex by two additional tendencies. First, the propensity for conflict between communities – linguistic, territorial, or others – is just as significant as the propensity for conflict between individuals. In fact, according to Calhoun, the propensity for conflict between communities is even higher than that between individuals of the same community, ‘because the sympathetic or social feelings are not so strong between

Multiple Voices and the Turmoil of Canadian Federalism  63

different communities, as between individuals of the same community.’36 Second, rulers are far from immune to the predominance of individual sentiments and thus tend to abuse their powers. These premises provide the basis for Calhoun’s examination of the differences between ‘constitutional governments’ and ‘absolute governments.’37 For Calhoun, the main distinguishing feature of a constitutional government is that it gives citizens the means to resist rulers. More precisely, the specificity of the constitutional form of government rests on two principles. The first principle, the right to vote, is described by Calhoun as ‘the indispensable and primary principle.’38 However, he adds, this principle cannot be the sole basis on which constitutional governments are founded, because the right to vote only transfers the seat of governmental authority to a sovereign people; it cannot by itself put a curb on the tendency to oppression and the abuse of power. If the whole community shared the same interests, the first principle would be sufficient. Indeed, as Calhoun notes, the larger a country is – by size and by number – the more likely it is that its population will face different circumstances and have different characteristics and interests. These different characteristics and interests are likely to give rise to political struggles and to the formation of a majority. It is in this context that Calhoun breaks new ground by introducing his second principle, the principle of ‘concurrent majority,’ a principle that he distinguishes from the principle of ‘numerical majority.’ The principle of numerical majority is based on the assumption that the political community as a whole shares a common interest, and tends to confuse the interest of the greatest number with the interest of all. By contrast, the principle of concurrent majority is based on the assumption that a political community is ‘made up of different and conflicting interests, as far as the action of the government is concerned,’39 and that the role of a government is to favour the emergence of decisions that take into account the main collective interests in conflict within the community. In other words, the principle of concurrent majority acknowledges that a country is generally a community of communities. Calhoun applies this constitutional communitarianism to the federal system of the United States in A Discourse on the Constitution and Government of the United States and many of his political speeches. It provides the basis for his compact theory, which confers a moral and constitutional superiority to states and sees the central government as the creation of a compact between federated states. In a way, this theory can be seen as a response to Madison, Hamilton, and Jay.

64 Dimitrios Karmis

In Calhoun’s theory of federalism, the prime value to be protected is the equality between constituent states. Its essential aim is to protect the fundamental interests of territorialized communities, the states, and to safeguard them against the potential use of central institutions as an instrument of majority tyranny. How did Calhoun translate his principle of concurrent majority into a federal principle? Calhoun was very preoccupied with the tariff barriers imposed by the central government, and this led him to think that ‘no two distinct nations ever entertained more opposite views of policy’40 than those of the Southern and Northern states. He maintained that the principle of concurrent majority was a fundamental pillar of the country’s federal constitution and lay at the heart of its founding compact. In contrast to Madison’s thesis, according to which the Constitution of 1787 ‘is, in strictness, neither a national nor a federal Constitution, but a composition of both,’41 Calhoun developed a compact theory based on alternative conceptions of sovereignty and the nation and sought to use the principle of concurrent majority as a safeguard against the potential use of central institutions as an instrument of majority tyranny. According to Calhoun, the Constitution of 1787 is strictly federal, insofar as it results from a compact among sovereign states that have created a ‘general government,’ but have retained the ultimate authority over it. The exercise of sovereignty can be divided, but not sovereignty itself. ‘Sovereignty, for Calhoun, is an entire thing – to divide, is – to destroy it.’42 He refers to the constitutional amending formula, which requires the consent of a three-fourths majority of states, as an illustration of this ‘delegation’ of sovereignty. Moreover, Calhoun rejects the ideas of an American nation and a ‘natural’ particularism of the states, both of which were often used to reinforce and extend the powers of the central government. Calhoun argues that states could not justifiably be accused of particularism since they had voluntarily delegated the exercise of part of their sovereignty to the central government – ‘If those who voluntarily created the system cannot be trusted to preserve it, what power can?’ – and because the strongest popular feelings ‘are on the side of the Union.’43 He also rejected the idea that there is such a thing as the American nation or the American people in the following terms: ‘There is, indeed, no such community, politically speaking, as the people of the United States, regarded in the light of, and as constituting one people or nation […] The whole, taken together, form a federal community – a community composed of States united by a political compact – and not a nation composed of individuals united by, what is called, a social compact.’44

Multiple Voices and the Turmoil of Canadian Federalism  65

In other words, the United States form a community of sovereign communities. For Calhoun, this communitarian federalism is, by definition, an incarnation of the principle of concurrent majority. Indeed, according to Calhoun, the right of the country’s numerical majority should be limited whenever there is a long-lasting diversity of interests between distinct and separate segments of the political community. He writes that, in the United States, this diversity of interests is almost exclusively of a geographical nature – ‘resulting mainly from difference of climate, soil, situation, industry, and production’45 – and that this naturally leads to a geographical division of power. The contracting parties to the compact, that is, sovereign states, endowed themselves with a ‘general government,’ and gave it the responsibility to direct and administer the common affairs of the community. They also retained all the powers necessary to protect the features directly related to their specific character against any possible intervention of the countrywide numerical majority.46 Calhoun considers that, in addition to this permanent incarnation of the concurrent majority principle, states have a ‘right of interposition’ – he also uses the terms right of invalidation or veto to designate it – enabling them to resist any encroachment that threatens the regional distribution of powers. Indeed, for Calhoun, the regional distribution of powers is so crucial that it ought to be seen as a ‘sacred’ principle.47 Calhoun rejects the idea that the Supreme Court of the United States can adjudicate conflicts between states and the ‘general government,’ and suggests instead a ‘right of interposition,’ which can take many forms and can be subject to many interpretations. In one scenario, if a state feels its interests have been damaged, it can appeal to the constituent power – the states themselves – that will adjudicate competing claims and interests on the basis of a three-fourths majority: ‘a State, acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the Government, created by that compact, to submit a question touching its infraction, to the parties who created it.’48 In a second scenario, Calhoun argues that, if the assembly of states were to err in its decision, each state retains its sovereign capacity to invalidate any decision involving an encroachment on its sphere of jurisdictions by the general government. Of course, using such a right would probably amount to a de facto secession. Finally, and more generally, Calhoun claims that if the fundamental interests of a state or a group of states are threatened on a long-lasting basis by the encroachment of the general government, they have a legitimate right to secede because it violates the terms of the original compact, whose purpose was the protection of the fundamental interests of states.49

66 Dimitrios Karmis

In all of these three cases, the moral superiority conferred to states is based on their status as constituent parties to the compact, and upon what Calhoun refers to as a ‘right of self-protection’ against majority tyranny.50 Because Calhoun’s thought was used to justify the secession of the Southern states, it is not surprising to see that its influence in the Canadian debates on Confederation was and has been rather limited. The initial debates on Canadian Confederation took place at the time of the American Civil War. In fact, when Calhoun is mentioned in the Canadian debates, it is usually to underscore the dangers associated with his position.51 Still, some Canadian proponents of the compact theory have supported a nationalist version of communitarian federalism, but without going as far as Montesquieu does regarding the instrumentalization of federal arrangements, or as far as Calhoun on the indivisibility of sovereignty. For instance, Richard Arès, in his Dossier sur le pacte fédératif de 1867 (originally published in 1941), refers to a number of authors who share a common perspective in emphasizing that ‘the root and the core of the [Canadian] problem is the compact between the nationalities, their association in the equality of rights and chances.’52 This conception of Confederation as a compact between nationalities – ‘endorsed mainly, but not exclusively, by French Canadians’53 – is not necessarily incompatible with the idea of a compact between provinces, but it clearly asserts the primacy of the federated communities – either the provinces, the political communities, the nations, or other types of communities – in the founding compact. According to Arès, it is quite obvious that, for most French Canadians, Confederation is primarily a ‘compact between nationalities.’ We find a similar view in the Rapport de la Commission royale d’enquête sur les problèmes constitutionnels, which was published in 1956. The Tremblay Commission does not reject the thesis of a compact between provinces, but it maintains that, from a Quebec perspective, ‘the spirit behind the agreement of 1864–1867 between the two nationalities’ is not that of a compact ‘between a conqueror and a vanquished, a superior race and an inferior race.’ It is rather the spirit of a compact ‘between associates, partners, with equal rights with regard to the survival of their ethnic group in the Canadian union.’54 The communitarian thesis of a compact between the two founding nations has lost some ground over time – particularly as a result of Pierre Trudeau’s attacks on biculturalism during the Royal Commission on Bilingualism and Biculturalism (1963–71) – but its influence over the terms of

Multiple Voices and the Turmoil of Canadian Federalism  67

political and academic debates is still quite significant. Eugénie Brouillet provides a recent example of an attempt to reformulate the thesis of a compact between the two founding nations.55 However, it is important to note that despite the persistent influence of various communitarian conceptions of the compact theory, a growing number of pluralist interpretations of it have emerged in recent years. In fact, given the pluralist nature of these interpretations, it would probably be more appropriate to speak of a theory of compacts rather than a theory of compact. Pluralist Federalism Communitarian federalism and pluralist federalism are often confused and merged together in the same category. This confusion is not surprising, given that these two normative conceptions of federalism rest both on a holistic ontological conception and a theory of federal compact(s). The historical sources of pluralist federalism can be traced back to early modern confederations as theorized by Johannes Althusius at the beginning of the seventeenth century,56 to Proudhon’s integral federalism,57 and to the ‘hidden constitutions of contemporary societies,’ as recently portrayed by James Tully. In this section, I shall focus primarily on Tully’s work, and I will identify three main characteristics that clearly distinguish pluralist federalism from communitarian federalism. First, pluralist federalism marks a break with the monistic conception of culture and identity that dominates modernity. In contrast with the idea that ‘a culture is separate, bounded and internally uniform,’ pluralist federalism is based on ‘the view of cultures as overlapping, interactive and internally negotiated.’58 According to Tully, this conception of culture leads to a pluralist conception of identity: As a consequence of the overlap, interaction and negotiation of cultures, the experience of cultural difference is internal to a culture […] On the older, essentialist view, the ‘other’ and the experience of otherness were by definition associated with another culture. One’s own culture provided an identity in the form of a seamless background or horizon against which one determined where one stood on fundamental questions (whether this identity was ‘British,’ ‘modern,’ ‘woman’ or whatever). Having an identity consisted in being oriented in this essential space, whereas the loss of such a fixed horizon was equated with an ‘identity crisis’; with the loss of all horizons. On the aspectival view, cultural horizons change as one moves about, just like natural horizons. The experi-

68 Dimitrios Karmis ence of otherness is internal to one’s own identity, which consists in being oriented in an aspectival intercultural space constituted by the three features mentioned above.59

In contrast with the hegemonic identification to a small republic as in Montesquieu or to a federated state endowed with a particular character and specific interests as in Calhoun, pluralist federalism claims that the growing overlap, interaction, and negotiation between cultures not only favours the affirmation and recognition of a plurality of identities, but also of a plurality of identities that are themselves plural. Second, this pluralist conception of culture and identity is conducive to a more inclusive form of compact theory. The pluralist federal compact is broadened in at least three ways. On the formal level, the pluralist federal compact not only seeks to include members of territorialized communities who can benefit from Calhoun’s principle of concurrent majority because they form a majority in one or more federated units, but also members of communities that Tully describes as ‘more vulnerable because they cannot claim their own political institutions to protect their cultures.’60 This is one way of interpreting the linguistic and religious minority rights in the Confederation of 1867 or Althusius’ conception of contractual federalism. On a more informal and conventional level, pluralist federalism stresses the importance of cultural diversity as a good that must be recognized. Pluralist federalism considers that the recognition of a federal status for members of territorialized communities entails, on a moral and sociological level, a broader concern with cultural recognition, including the recognition of minorities created by the federal structure itself. In other words, for pluralist federalism, if we are to be coherent, the justification for recognizing some territorialized minorities via a federal compact should also apply to minorities created by the federalization process. Indeed, how can we justify that the three conventions of post-imperial constitutionalism that Tully refers to – mutual recognition, consent, and cultural continuity – apply to some cultures, but not to some others? I think this is precisely what Tully means when he writes that ‘the good of a constitutional association that recognises cultural diversity in its public life is, of course, that it engenders an attitude of diversity awareness among its citizens.’61 This attitude tends to generate new struggles for recognition, a ‘never-ending process,’ as identities shift over time and as any form of recognition is necessarily incomplete.62 Finally, the pluralist federal compact is not only open to a plurality of identities, but

Multiple Voices and the Turmoil of Canadian Federalism  69

also to a plurality of plural identities or to identities that are liable to a further pluralization as a result of the federalization process. In the perspective of pluralist federalism, citizens who formally belong to more than one political community are likely to develop a plural identity. Such a plural identity does not necessarily imply that such citizens are attached to each one of these political communities – and its corresponding institutional order – in an equal manner and with an equal intensity; it rather suggests a categorical attachment, that is, an important attachment that individuals can only abandon in exceptional circumstances. Third, pluralist federalism is characterized by its unequivocal openness to political and juridical pluralism. Universalist federalism regards demands for asymmetry as the manifestation of particularism, which contradicts the principle of equality between federated units, threatens minorities, and jeopardizes the unity of a country, while communitarian federalism oscillates between classical federalism and an asymmetry understood in exclusive and restrictive terms. In contrast, pluralist federalism conceives asymmetry as an institutional form of recognition necessary in a world characterized by cultural diversity. It does not necessarily advocate asymmetrical solutions in every case, but it remains open to the demands and needs for recognition. According to Tully, Thomas Jean-Jacques Loranger has been one of the pioneers and most skilful proponents of pluralist federalism in Canada. Although Loranger’s 1883 work, Lettres sur l’interprétation de la Constitution fédérale dite l’Acte de l’Amérique britannique du Nord, 1867,63 has often been interpreted as a strict formulation of the communitarian conception of the compact between provinces, Tully believes that it should rather be interpreted as an expression of a pluralist federalism founded on a multi-compact between nations, provinces, minorities, and individuals.64 Samuel LaSelva also seeks to bring to the fore the pluralist foundations of Canadian federalism, but he turns towards George-Étienne Cartier to do so.65 Conclusion Despite Canada’s growing efforts, in recent years, to appear as a paragon of federalism to the world, the country has yet to overcome its long-standing existential crisis. At the heart of this crisis is a confrontation between profoundly different normative conceptions of federalism, all of which have a tendency to claim that they embody the ‘true’

70 Dimitrios Karmis

spirit of federalism. This overview of the three main normative currents of the modern federal tradition gives us a better idea of the extent of the divergence between these different conceptions. It also enables us to understand in what ways these three currents can all legitimately claim to be federalist. Given the extent of the differences between these different conceptions of federalism, it seems obvious that any ‘multilogue’ on the reform of the Canadian federation will have to involve a commitment to recognize the multiple voices of the federal tradition and a willingness to discuss openly the past, present, and future normative foundations of the federation. Many will think that such an approach is unlikely to be successful, but it appears as the only way forward to a federal arrangement that is not based on a fundamental disagreement. notes   * This chapter was translated from French by Julie Bernier. I would like to thank Alain-G. Gagnon, Linda Cardinal, Guy Laforest, Jocelyn Maclure, Frédéric Nolet, and Jean Rousseau for their comments and suggestions.   1 Consider, e.g., John A. Macdonald’s stance during the debates of 1865 in the Parliament of United Canada. See, in particular, Macdonald’s speeches in Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, eds., Canada’s Founding Debates (hereafter Debates) (Toronto: Stoddart, 1999), 277–80.   2 John Agnew, ‘Postscript: Federalism in the Post-Cold War Era,’ in Graham Smith, ed., Federalism: The Multiethnic Challenge (London: Longman, 1995), 300.   3 On collaborative federalism, see Harvey Lazar, ‘Non-Constitutional Renewal: Towards a New Equilibrium in the Federation,’ in Harvey Lazar, ed., Canada: The State of the Federation 1997 (Kingston: Institute of Intergovernmental Relations [IIGR], 1998), 3–35; and Richard Simeon and Ian Robinson, ‘The Dynamics of Canadian Federalism,’ in James Bickerton and Alain-G. Gagnon, eds., Canadian Politics, 4th ed. (Peterborough: Broadview Press, 2004), 117–22.   4 Samuel LaSelva and Richard Vernon, ‘Liberty, Equality, Fraternity … and Federalism,’ in Martin Westmacott and Hugh Mellon, eds., Challenges to Canadian Federalism (Scarborough: Prentice-Hall, 1998), 30.   5 Wayne Norman, ‘Towards a Philosophy of Federalism,’ in Judith Baker, ed., Group Rights (Toronto: University of Toronto Press, 1994), 85–6.   6 On the renewed interest for normative issues related to federal arrange-

Multiple Voices and the Turmoil of Canadian Federalism  71 ments and for the arguments supporting these arrangements, see Dimitrios Karmis and Wayne Norman, ‘The Revival of Federalism in Normative Political Theory,’ in Dimitrios Karmis and Wayne Norman, eds., Theories of Federalism (New York: Palgrave Macmillan, 2005), 3–21; Alain-G. Gagnon, ‘The Moral Foundations of Asymmetrical Federalism: A Normative Exploration of the Case of Quebec and Canada,’ in Alain-G. Gagnon and James Tully, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001), 319–37; Samuel LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGill-Queen’s University Press), 1996.   7 Lester B. Pearson, Federalism for the Future: A Statement of Policy by the Government of Canada (Ottawa: Government of Canada, 1968), 17; emphasis added.   8 I doubt that anyone will be surprised to learn that sovereignists in Quebec use a similar method – they contend that the central government in Canada is not ‘truly’ federalist – to justify their option and discredit their political opponents. This serves mainly rhetorical purposes because the possibility of a sovereign Quebec with such a ‘truly’ federal structure and spirit has never been contemplated by the proponents of Quebec sovereignty.   9 It is important to note here that there is no universally accepted typology of the different normative conceptions of federalism. See, e.g., the different typologies found in Will Kymlicka, Finding Our Way (Don Mills: Oxford University Press, 1998), chapter 10; and Thomas Hueglin, ‘Federalism at the Crossroads: Old Meanings, New Significance,’ Canadian Journal of Political Science/Revue canadienne de science politique 36/2 (2003): 275–94. The typology presented in this chapter has important similarities with these typologies, but it uses three types instead of two, emphasizing the usually neglected distinction between communitarian federalism and pluralist federalism. Moreover, I must add that each of the three major types of federalism identified here can take many forms, as it adapts to different contexts. 10 See Abbé Charles de Saint-Pierre, Projet pour rendre la paix perpétuelle en Europe (Paris: Fayard, 1986 [1712]). 11 It is important to note that this new form of federal arrangement will subsequently lead to a terminological distinction, conventional nowadays, between federation and confederation. That most eighteenth- and nineteenth-century authors used federation, confederation, and derivative terms interchangeably is too often overlooked. In Democracy in America (New York: Vintage, 1990), Tocqueville provides a good summary of the innovative character of the American Constitution of 1787 and deplores the

72 Dimitrios Karmis absence of a more precise vocabulary to accurately account for this innovation. He writes that this constitution ‘rests in truth upon a wholly novel theory, which may be considered as a great discovery in modern political science’ (vol. 1, 157). Tocqueville also deplores that ‘the human understanding more easily invents new things than new words,’ and laments that ‘the new word which ought to express this novel thing does not yet exist’ (ibid., 158–9). The terminological distinction that we now make between federation and confederation only began to emerge at the end of the nineteenth century. For an account of the evolution of the language of federalism, see Dimitrios Karmis, ‘Fédéralisme et relations intercommunautaires chez Tocqueville: entre prudence et négation des possibles,’ Politique et sociétés 17/3 (1998): 67–72.  Today, this distinction is part of a considerably more sophisticated typology. According to Ronald Watts, federations and confederations are the most widespread types of a larger set of institutional arrangements that we call ‘federal systems.’ Watts points out that the term federal political system refers to ‘a broad category of political systems in which there are two or more levels of government which combine self-rule for the governments of the constituent units with elements of shared-rule through common institutions. This broad genus encompasses a whole spectrum of species represented by constitutionally decentralized unions, federations, confederations, federacies, associated statehood, condominiums, leagues, and joint functional authorities.’ Federations ‘represent a particular species in which neither the federal nor the constituent units of government are constitutionally or politically subordinate to the other, i.e., each having sovereign powers derived from the constitution rather than another level of government, each empowered to deal directly with its citizens in the exercise of its legislative, executive and taxing powers, and each directly elected by its citizens.’ Ronald Watts, ‘Examples of Partnership,’ in Guy Laforest and Roger Gibbins, eds., Beyond the Impasse: Toward Reconciliation (Montreal: Institute for Research on Public Policy [IRPP], 1998), 361. The main distinction between confederation and federation is that in a confederation, ‘the common government is dependent upon the constituent governments, being composed of delegates from the constituent governments and therefore having only an indirect electoral and fiscal base’ (ibid., 363). 12 From now on, I will sometimes use the pseudonym ‘Publius’ to designate Madison, Hamilton, and Jay. This pseudonym was used by the three authors to sign newspaper articles, in which they argued in favour of the ratification of the new Constitution of 1787 in the State of New York. This

Multiple Voices and the Turmoil of Canadian Federalism  73 set of articles was also published as two separate volumes in 1788, and was eventually put together to become a single volume. The latter became a classic and is more commonly known as The Federalist. 13 This statement needs to be qualified – it is very difficult to categorize Tocqueville’s thought – but since space is limited, in this chapter I am unable to make all the nuances I would like to make. For more on the case of Tocqueville, see Karmis, ‘Fédéralisme et relations intercommunautaires.’ 14 James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (New York: Penguin, 1987, paper LI), 321. 15 Tocqueville, Democracy in America, vol. 1, 168. 16 Pierre Elliott Trudeau, ‘Des valeurs d’une société juste,’ in Thomas S. Axworthy and Pierre Elliott Trudeau, eds., Les années Trudeau: La recherche d’une société juste (Montreal: Le Jour, 1990), 384; all translations mine, unless otherwise stated. It should be noted that there is more to Trudeau’s conception than a simple repetition of Publius’ and Montesquieu’s classical argument in favour of fundamental liberties. Trudeau saw ‘equal opportunities,’ an idea foreign to Publius and Montesquieu, as an important factor to consider and as a fundamental justification for regional economic redistribution and individual linguistic rights in Canada. See ibid., 382–3. 17 The Federalist, no. 9, 122. 18 Ibid. 19 For a critique of Hamilton’s conception of federalism, see Hueglin, ‘Federalism at the Crossroads.’ Hueglin maintains that, although Hamilton portrays himself as a disciple of Montesquieu, his conception of federalism marks a radical break with the previous definitions of the federal principle developed by Althusius and Montesquieu. 20 The Federalist, no. 17, 157. 21 Ibid., 157–8. 22 Tocqueville, Democracy in America, vol. 1, 386. 23 Pierre Elliott Trudeau, Federalism and the French-Canadians (New York: St Martin’s Press, 1968), 156. 24 The Federalist, no. 2, 90 and 91. 25 Kymlicka, Finding Our Way, 137. Kymlicka calls this type of mononational federalism territorial federalism and he distinguishes it from multinational federalism. 26 For a more detailed analysis of Tocqueville’s stance on this issue, see Karmis, ‘Fédéralisme et relations intercommunautaires.’ 27 Trudeau, ‘Des valeurs d’une société juste,’ 389. 28 Ibid., 389–90. 29 Ibid., 391.

74 Dimitrios Karmis 30 Montesquieu, De l’esprit des lois, in Œuvres complètes, ed. Roger Caillois (Paris: Gallimard La Pléiade, 1951), vol. 2, 369–70. 31 Ibid., 372. 32 Louis-Georges Harvey, Le printemps de l’Amérique française: Américanité, anticolonialisme et républicanisme dans le discours politique québécois, 1805– 1837, (Montreal: Boréal, 2005), 247. 33 Ibid., 247. 34 For an example of the republican federalism of the Rouges, see the idea of a ‘real confederation’ advocated by Antoine-Aimé Dorion in the parliamentary debates of 1865, in Ajzenstat et al., Debates, 295–6). For more details on the republican federalism of the Reformists of Upper Canada, see Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, 1999). 35 In contrast to Montesquieu, Calhoun contended that a compact between states gives rise to a real government rather than a ‘congress’ or a ‘council’ similar to an ‘assembly of diplomatists.’ For Calhoun this is the major difference distinguishing the Articles of Confederation of 1781 from the new American Constitution that took effect in 1789. John C. Calhoun, A Discourse on the Constitution and Government of the United States, in Union and Liberty: The Political Philosophy of John C. Calhoun (Indianapolis: Liberty Fund, 1992), 116–17. 36 Calhoun, A Disquisition on Government, in Union and Liberty, 11. 37 Ibid., 12. 38 Ibid., 13. It should be noted here that this right to vote is limited to white landowners and that Calhoun is far from being a precursor in this respect. 39 Ibid., 23–4. 40 Calhoun, ‘The Fort Hill Address: On the Relations of the States and Federal Government,’ in Union and Liberty, 386. 41 The Federalist, no. 39, 259. 42 Calhoun, Discourse on the Constitution, 105. 43 Calhoun, ‘Fort Hill Address,’ 377. 44 Calhoun, Discourse on the Constitution, 116. 45 Calhoun, ‘Fort Hill Address,’ 374. 46 Ibid., 375. 47 Ibid., 375–6. 48 Ibid., 378. 49 Calhoun, Discourse on the Constitution, 211–12. 50 Calhoun, ‘Fort Hill Address,’ 374. 51 See, among others, Robert Vipond, Liberty and Community: Canadian

Multiple Voices and the Turmoil of Canadian Federalism  75 ­ ederalism and the Failure of the Constitution (Albany: State University of F New York Press, 1991), 25–6. 52 Richard Arès, Dossier sur le pacte fédératif de 1867. La Confédération: pacte ou loi? (Montreal: Bellarmin, 1967 [1941]), 237. 53 Ibid., 225. 54 Commission royale d’enquête sur les problèmes constitutionnels (Commission Tremblay), Rapport de la Commission royale d’enquête sur les problèmes constitutionnels, vol. 2 (Quebec: Government of Quebec, 1956), 141. 55 See Eugénie Brouillet, La négation de la nation: L’identité culturelle québécoise et le fédéralisme canadien (Quebec: Septentrion, 2005), 148–50. 56 On the characteristics and limits of Althusius’ pluralism, see Thomas Hueglin, Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism (Waterloo: Wilfrid Laurier University Press), 1999. 57 On the characteristics and limits of Proudhon’s pluralism, see Dimitrios Karmis, ‘Pourquoi lire Proudhon aujourd’hui? Le fédéralisme et le défi de la solidarité dans les sociétés divisées,’ Politique et sociétés 21/1 (2002): 43–65. It should be noted that Proudhon’s thinking gave rise to a major federalist school of thought – integral federalism – in the context of the European interwar period and the postwar period. For a summary of the origins of this school of thought and of its conception of pluralist federalism, see Bernard Voyenne, Histoire de l’idée fédéraliste, vol. 3, Les lignées proudhoniennes (Paris: Les Presses d’Europe, 1981). 58 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 10. 59 Ibid., 13. 60 Ibid., 165. 61 Ibid., 177. 62 James Tully, ‘Liberté et dévoilement dans les sociétés multinationales,’ Globe 2/2 (1999): 26. 63 Thomas Jean-Jacques Loranger, Lettres sur l’interprétation de la Constitution fédérale dite l’Acte de l’Amérique britannique du Nord, 1867 (Quebec: Imprimerie A. Côté et Cie, 1883). 64 See Tully, Strange Multiplicity, chapter 5. 65 See Samuel LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGill-Queen’s University Press, 1996).

This page intentionally left blank

PART TWO Canadian Federalism

Some researchers consider Canadian federalism to be a model, but others denounce it as having only a few rare federal features. This can be partly explained by the fact that Canada’s federal institutions operate relatively well, but their democratic anchorage often poses problems for the federated communities. The contributors to Part 2 provide enlightening information on the disputes, as well as on the democratic deficit that characterizes Canadian federalism. In Chapter 3, François Rocher discusses both English-speaking Canadians’ and French-speaking Québécois’ rejection of the federal ideal. Basing his arguments on a normative analysis, Rocher examines how the notions of autonomy and interdependence have been articulated at key points in the political history of Quebec and Canada. His thesis is that the central government’s practices and the leading currents in English-language research have eliminated all reference to the notion of autonomy in favour of that of efficiency, while the approach generally employed by French-speaking Québécois researchers and the government practices to which they refer emphasize the notion of autonomy and interdependence. Thus, while the literature on both sides contains generally relevant analyses of institutional problems relating to the operation of the federal system, in both cases their logic conforms to a way of thinking that leaves little room for an understanding of the kinds of relations that should characterize a federation. Prime Minister Stephen Harper’s government is hinting at significant constitutional changes in Canada to institute what it calls open federalism, but the authors of Chapter 4 shed light on the scope of the challenges that will have to be met by the minority Conservative team during its mandate. In Chapter 4, Jean-François Caron, Guy Laforest,

78  Canadian Federalism

and Catherine Vallières-Roland examine the foundations, complexity, and size of the federal deficit in Canada. To identify the key concept of federal deficit for the purpose of assessing the health of Canada’s political regime, they use and adapt Raoul Blindenbacher and Ronald Watts’ conceptual framework which has structural characteristics and dimensions related to the political culture specific to federal systems. They measure how the federal equilibrium is affected by globalization, federal deficiencies in the Constitution acts of 1867 and 1982, the institutional weaknesses of the Senate and intergovernmental cooperation mechanisms, the emergence of constitutional corporatism, the increased conflict between the Quebec’s and Ottawa’s national plans, and a Canadian political culture that denies Canada’s multinational nature. Caron, Laforest, and Vallières-Roland conclude that there is a medium to high federal deficit in Canada. In Chapter 5, Andrée Lajoie continues in this direction by exploring provincial and minority dynamics with respect to Canada’s central government. She notes that, initially, the centralization of jurisdictions and powers in the Canadian federation seemed to develop independently of the status of minorities, partly because the two constitutional conflicts arose at different points in time. However, they are in fact linked, as Lajoie argues, and Canadian federalism, as presented at the end of her analysis, seems to ensure the effectiveness of dominant values and interests with respect to both the provinces and Canada’s minorities. In Chapter 6, Michel Seymour starts from the position that there is no point in trying to reform the Canadian federation, and that all initiatives in that sense are doomed to failure. According to him, what could be better for sovereigntists than to state what would have been a minimally acceptable, reasonable, and honourable compromise for Quebec within the Canadian federation? Seymour seems to have little confidence that, following the election of Stephen Harper’s Conservatives, on 23 January 2006, the fiscal imbalance is going to be eliminated, provincial jurisdictions respected, and significant international representation obtained for Quebec at UNESCO and other such international venues. Seymour wonders whether the central government might be moving towards a reasonable compromise with Quebec, but in the end concludes that appearances can be deceiving and not only are we very far from the contemplated reform, but in fact we are moving further away from it. Joseph Facal, in Chapter 7, confirms a number of the ideas advanced by Seymour. According to the former Quebec Minister of Affaires

Canadian Federalism  79

intergouvernementales, for some years, those holding the reins of Canada’s central government have been employing a strategy to reconfigure the Canadian political system. The strategy would target both meeting the requirements of globalization and minimizing the likelihood that Quebec will secede. This is gradually changing the Canadian political system into a unitary regime, and leading to a decline in the spirit, principles, and practices of classical federalism. Ongoing socioeconomic changes in Canada are facilitating the shift. According to Facal, it is unlikely that the new Conservative government will have the strength or even the will to reverse this general trend. José Woehrling concludes Part 2 with a review, in Chapter 8, of the consequences of the Canadian Charter of Rights and Freedoms on politics and democracy, and thus, on the Canadian federal system. After examining the Supreme Court of Canada’s shifts between activism and restraint, Woehrling shows how implementing the Charter has led to a judicialization and juridicalization of political life in Canada, in other words, to a reformulation of political debates in the language of rights and their transfer from the political to the judicial arena. He looks at how the Charter affects the federal system and notes the transfer of some of the decision-making power of representative provincial bodies to federal judicial entities, as well as the consolidation, at least in English-speaking Canada, of national identity at the expense of provincial and regional identity.

This page intentionally left blank

3 The Quebec–Canada Dynamic or the Negation of the Ideal of Federalism françois rocher

Canadian federalism has been analysed from many different angles, but the literature on the subject is characterized by two particular phenomena. First, even the least attentive observer would note that the interpretation of the evolution of Canadian federalism differs greatly depending on the origin of the author. Quebec francophone scholars have, in large measure, attempted to illustrate that the spirit that marked the adoption of a federated state in Canada has been betrayed. They have accused various federal governments of using federal spending power to interfere in provincial jurisdictions and of attempting to centralize power, most recently through the 1982 patriation of Canada’s Constitution and the enactment of the Canadian Charter of Rights and Freedoms. Federal initiatives are invariably judged by these authors to be contrary to the initial division of powers. Conversely, scholars from English-speaking Canada have dealt with more pragmatic questions. Their approach to political institutions has been influenced by three dominant questions: (1) They have studied the links between federalism and democracy including the opportunity for citizen participation, the multiplication of political entry points, the establishment of counterweights to the respective powers of each government, and the reduction of tyrannical behaviour; (2) they have explored the capacity of governments to develop public policies responsive to the needs of their citizens and have searched for the possibility of policy learning between diverse governments; And (3) English-speaking Canadian authors have focused on federalism as a way to manage Canada’s diversity and reduce tensions by giving territorially concentrated minorities control of institutions that would allow them to protect and promote their distinctive traits – first Quebec and, more recently, First Nations.1

82  François Rocher

The second phenomenon I wish to point out about the literature on federalism in Canada is a perspective that has been absent from it. Generally, the analyses of Canadian federalism have been too descriptive, and federalism has been depicted first and foremost as a mode of organization and a sharing of jurisdiction. With the exception of a few authors,2 the principles and normative dimensions of federalism are rarely discussed, at least when compared with studies on federalism’s political and institutional dimensions. Even if the analysis of the evolution of Canadian federalism has long been the subject of numerous studies,3 the modes of representation of federalism and its ideals have not solicited much attention. Without suggesting that the idea of federalism should determine its practice, it is important to recognize that representations are crucial bases for the evaluations that we make. For example, the studies that examine the decentralized character of federalism rest on a particular conception, often implicit, of a mode of political organization that is optimal for Canada. Similarly, focusing on results and efficiency (e.g., what federalism produces by way of public policy in the areas of health care, environmental protection, human rights, skills training, education, and justice) presupposes a certain conceptualization, again often implicit, not only of federalism but also of the community in which it is embedded. This community is rarely identified because it is usually taken for granted: the general government4 acts in the name of the Canadian nation, and the Quebec government performs the same function for the Quebec nation. It is often on this basis that the evaluation of federalism is made: whether it produces ‘good’ or ‘bad’ outcomes or, more specifically, good or bad public policies. Yet, more than four decades ago, William Riker remarked that, although such an approach is important from the point of view of a citizen, it is unsatisfactory as the point of departure for a researcher. Rather, he emphasized the need for scholars to address ‘existentialist’ questions such as the conditions for the adoption and maintenance of the federal form.5 For Riker, it was always important to learn from general lessons and to theorize what could be observed in the federal practices of a certain era. For some, the practice of federalism should be the point of departure and objective of research on the subject. For others, like Hendrik Brugmans, federalism constitutes a philosophy of society and an institutional form that encompasses a certain conception of social relations, not only between citizens, but also between constitutive communities.6

The Quebec–Canada Dynamic  83

William S. Livingston, one of the most respected theorists of federalism, reminds us of the danger of simply identifying what should constitute the five, eight, or ten ‘fundamental institutional characteristics’ of federalism. Such a set of criteria permits us to declare that states that do not conform to these characteristics are ‘non-federal,’ but ignores the fact that institutions exist within diverse social and cultural contexts and therefore do not react to the same realities.7 A more socially and culturally sensitive approach to federalism would permit researchers to avoid such reductionism. This chapter has two sections. Theoretical questions are at the heart of the first section: What are the common characteristics of different institutional definitions of federalism? And, although institutional aspects are central to distinguishing federal states from other state forms (unitary or confederal), it is also necessary to examine the more general principles that allow us to determine the best form of political organization. Thus, it is essential to explore the underlying normative principles of federalism itself. The second section will deal with the Canadian case specifically. My aim will not be to trace the evolution of federal practices since 1867, but rather to outline the different conceptions of federalism (or their absence) that have marked key moments of Canadian political history. This approach will reveal the manner in which federal principles have been understood or misunderstood. It is important to note that my goal is not to determine whether Canada ‘conforms’ to federal principles nor to make value judgments concerning the absence or presence of a well-understood and well-practised federalism. Rather, I wish to examine how federalism has generally been conceived by Canadian political and intellectual elites. Federation, Federalism, Federal Society: From Organizational Principle to Normative Model The Federation as a Principle of Organization Federalism is primarily conceived of as a mode or principle of institutional organization.8 However, the concept of federalism also refers to the principle, the idea, and the belief on which the federal system is built. Our analysis will combine these two dimensions of federalism. Kenneth C. Wheare proposes a formula that describes the federal principle as ‘the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.’9

84  François Rocher

Daniel J. Elazar offers a simple definition, which is now one of the most commonly referenced: ‘Federal principles are concerned with the combination of self-rule and shared rule.’10 The federation refers to a particular form of relationship, which is at once collective and individual, among groups or political entities within a limited but permanent union, aiming at the realization of common objectives that respect the integrity of the respective parties. A federal political system is, by definition, constituted of multiple governments. Consequently, we find a division of powers that protects the existence, integrity, and authority of respective governments. Regardless of the definition used, the notion of equilibrium among the constitutive elements of the whole, or the orders of government, is at the heart of the federal idea. According to Frank Delmartino and Kris Deschouwer, ‘a federation is a politicalinstitutional structure that offers to its constitutive elements explicit guarantees of self-management of their own affairs and co-management of the state which creates an equilibrium between the centre and the periphery appropriate to the proper conduct of public affairs.’11 The notion of relations between collective entities, both between the federal state and the federated entities, and among the federated entities themselves, is central to the understanding of federalism.12 As Carl Friedrich states, ‘we can properly speak of federalism only if a set of political groupings coexist and interact as autonomous entities united in a common order with an autonomy of its own.’13 The recognition and preservation of diverse collectivities within a federation should be achieved by specific institutional reforms. This is why theoretical work on federalism often makes reference to the fact that federalism aims to combine unity and diversity within a given political space or society. These two ideals, contradictory at first glance, could be reconciled if the political system and its institutions favoured the maintenance and renegotiation of an acceptable equilibrium between the imperatives of unity and diversity. Regardless of the way in which these ideals are put into practice, the foundational idea is that different communities simultaneously recognize their diversity and their mutual need for solidarity, which engenders the creative tension between the dynamics of autonomy and cooperation: ‘real autonomy, with the greatest possible democracy, is realizable. Cooperation should take place under the aegis of federal organisms which are responsible for common tasks.’14 In a classic work, Kenneth Wheare identifies certain essential institutions for the functioning of a good federal government: (1) a written

The Quebec–Canada Dynamic  85

constitution; (2) the recognition of the principle of the supremacy of the constitution; (3) the presence of an amending formula that guarantees that no order of government can unilaterally modify the statute, powers, or the general governing of the federated entities; (4) the presence of an impartial institution (such as a court of law) that decides on disputes concerning the division of powers, and (5) the representation of the interests of the constitutive entities within federal institutions (this function could be exercised through a second chamber such as a Senate where representation is preferably equal by region or through the party system).15 More recently, taking into account the characteristics identified by Wheare, Raoul Blindenbacher and Ronald L. Watts underlined the importance of the equitable distribution of fiscal resources in order to allow governments to exercise their authority within their respective constitutional jurisdictions. They also pointed out the importance of implementing processes and institutions to facilitate interprovincial collaboration within sectors involving shared or overlapping responsibilities.16 Those political systems that combine characteristics specific to unitary and federal states (e.g., the subordination of the federated states to the general state, the absence of representation of the interests of the federated states in the federal institutions) are regarded as quasi-federations. From a purely institutional point of view, a federation is distinguished from a unitary state by a number of distinctive traits. The creation of a general authority having real powers within specific areas must be accompanied by its corollary, namely, the presence of constitutive political entities (provinces or states). Because of the constitutional division of powers, the two orders of government must work together in a distinct and autonomous manner. Each order has the power to exercise its authority over its citizens and territory in a manner that is independent and autonomous within its own jurisdictions, in addition to having responsibilities that are shared between two or more orders of government.17 Moreover, a decision-making system can be regarded as federal if it consists of several different territorially defined groups, each enjoying a relatively high degree of autonomy, conjointly participating in an organized and permanent manner in the formation of a collective will to be expressed by the general entity.18 Thus, there is the necessity for a certain level of participation on the part of the federated entities within the decision-making process of the general government. Additionally, the organization of the state is federal only if the division of powers is accompanied by a certain level of autonomy from the general govern-

86  François Rocher

ment for the federated entities. Stated in another manner, the division of powers would lose its meaning if the activities of the two orders of government overlapped completely. Within federalism, citizens are therefore governed by several orders of government, each being sovereign in the jurisdictions they are assigned by the constitution. The functioning of a federal state involves refusing to adopt a dogmatic attitude and embracing a pragmatic approach instead. Federal societies combine two indispensable qualities in order to function well: (1) the recognition of heterogeneity and (2) the development of solidarities that permit the bridging of differences. As Hendrik Brugmans remarked, in his La pensée politique du fédéralisme (1969), a regime of coexistence among diverse groups cannot succeed unless the groups constantly search for compromises. In this sense, majority rule is not the only criterion considered in federal societies. Federal societies must be characterized by openness to dialogue and mutual understanding.19 Thus, ‘politics must aim at the equilibrium of autonomous powers that must be constantly re-established. A society recognized to be heterogeneous has to have a correspondingly multiform political and administrative structure […] the problem is to make powers, often rivals, cooperate as harmoniously as possible without canceling each other out.’20 These general considerations on the importance of compromise, the recognition of difference, and the openness to dialogue explain why the question of the division of powers is at the heart of federal institutional arrangements. From a strictly institutional perspective, to definitively fix the parameters of a federation is problematic in many ways. If it is conceived as a pragmatic and prudent method of governing,21 federalism must willingly change to reflect social evolution and the emergence of new types of problems. Thus, the division of powers must be the object of constant re-examination. More than fifty years ago, Maurice Lamontagne submitted that it is utopian to search for a definitive division of powers, because the functions and responsibilities of a state change and evolve. In Le fédéralisme canadien: évolution et problèmes (1954), Lamontagne argues that it is necessary to take into account the complexity of human problems and their various solutions. He adds that ‘federalism should not be enclosed in a static and definitive formula that lacks realism. In doing so, we create a rigidity within the political structure that is incompatible with social and economic evolution.’22 The rigidity to which Lamontagne refers is amplified by an approach to the federation that is more political than judicial and where the emphasis is placed on

The Quebec–Canada Dynamic  87

constitutional arrangements that specify the obligations of one government to the others.23 If flexibility is presented as a cardinal virtue, it is not appropriate to specify the conditions that precede the evolution of the federal form of a state. If the principle of efficiency is more important than all other principles, this supposes that there is a consensus on what must be done, the way to do it, and the manner in which to evaluate and measure the results. The response to such basic questions is evidently greatly conditioned by the political preferences of particular actors and analysts. The declaration of institutional characteristics judged indispensable for a federative organization (e.g., Wheare’s five elements and the additions of Blindenbacher and Watts) as a solution to crises is part of a political and ideological process rather than a heuristic one. Such a process would lead us to justify or condemn particular policies or orientations because they did not conform to a theoretically constructed ideal type. The development and construction of a ‘checklist’ of institutions presumably indispensable to the presence of a ‘true’ federation represents a mechanical, instrumental, functional, and – taking into account the complexity of the possible forms of organization – reductionist mode of reasoning. This process, as pointed out by Bruno Théret, in his article entitled ‘Du principe fédéral à une typologie des fédérations: quelques propositions’ (2005), ‘presupposes the existence of a universal normative model through which we search to measure the differences of situations between countries which appear more or less close to the optimal model.’24 The problem consists of the fact that this checklist contributes to the reduction of the federal phenomenon to an idealized form of expression at the expense of all other forms. Not only does this idealization of federalism deny the existence of a multiplicity of federal arrangements, but it further ‘illustrates a theoretical deficit in the analysis of federalism within the social sciences.’25 The celebration of pragmatism tends to make us forget that social and political relations are not harmonious. Institutional arrangements always reflect the presence of unequal power relations among individuals, groups, and collectivities. A compromise is never anything other than an arrangement – often unstable and rarely permanent – among political actors. Regardless of whether or not a federal type of political system must define itself starting from a certain number of specified institutional characteristics, the particular forms and modalities adopted inevitably vary from one society to the next as a reflection of historical realities, power relations, and the economic, social, cultural, and political condi-

88  François Rocher

tions of the time. For Bruno Théret, a normative model of federalism does not even exist. Rather, it is an idea, a principle, or a phenomenon that expresses itself in the practice of the variety of existing federations.26 For others, federalism cannot be conceived other than as a moral ideal, like that of democracy. In this sense, federalism can be presented as a philosophy that is operationalized in concrete institutions. As Brugmans asks, in Panorama de la pensée fédéraliste (1956): ‘if law is the intellectual objectifying of interests and if interests can change, how can a federative power maintain itself?’27 This is the question that Samuel LaSelva tries to respond to when he deals with the moral foundations of Canadian federalism. LaSelva holds that when federalism is considered a political virtue it is almost always associated with freedom and, in doing this, the moral aspects of community are neglected. As a political virtue, federalism recognizes that several community identities can coexist without being mutually exclusive. At the same time, as a moral virtue, federalism goes beyond the agnosticism directed towards the community to affirm its moral dimension.28 Thus, federalism conceived through the lens of political philosophy puts forth a particular conception of the community and promotes conditions of living together well. Federalism as a Normative Model Taking into account the normative dimensions of federalism carries with it practical consequences that are important to mention before we start. The notion of federalism refers to both the collection of federal institutions and the collection of principles that must precede the putting into place of these institutions. In this regard, the analysis of federalism cannot only pay attention to the organization of power. Rather, it requires a detour for the exploration of ideas, representations, values, and ideals. What philosopher Daniel Weinstock, in his 1999 paper entitled ‘Vers une théorie normative du fédéralisme,’ calls the normative justification of federalism consists of examining the desirability of the values that a federal system of government allows to be realized. This justification contrasts with another justification – which is purely instrumental – in which the choice of a federal system is only the fruit of a calculation of the advantages to be obtained and the relations of forces that are present.29 It is also a question of attitude. According to Elazar, while federalism is usually understood through the political structures that it puts in place, the federal idea principally makes reference to the char-

The Quebec–Canada Dynamic  89 Figure 3.1. Principles of Federalism heterogeneity

autonomy

non-subordination

Common goals

solidarity

interdependence

participation

acter of human relations.30 It is useful to remember that the origin of the word federalism is the Latin term foedus, which means union, pact, voluntary agreement, or covenant. Foedus presupposes the existence of autonomous and equal individuals. The foundations of a federal association are, therefore, the principles of mutual consent, cooperation, and partnership with the goal of creating a common framework that preserves the integrity of the constitutive parties. The federal alliance creates a privileged social arrangement that is desired and aimed at by those who undertake the initial contract.31 I will now seek to identify the principles that underlie federalism. I will not deal with the administrative organization of federalism discussed above, but rather with its moral aspects. If these seem relatively simple, their application is not, which causes Brugmans to state that ‘anybody who claims that all that needs to be done is to apply federal principles has understood nothing of the problem.’32 The principles at the heart of federalism are few in number and can be represented under the form of two triptychs,33 with the principal element of each triptych located in the centre (see Figure 3.1).34 Why this insistence on the notion of autonomy? A federal society depends on the recognition of pluralism and heterogeneity, which permits democracy to flourish in a political space characterized by multiple and profound divergences of viewpoints among territorially constituted social groups. As opposed to a unitary vision, pluralism can engender a mode of

90  François Rocher

functioning within society that rests not on the majority but on the governing of minorities. Referred to as the democracy of pacification or consensus by Arend Lijphart or as that of the composed majority by Elazar, this concept puts into question the unitarian postulate as the sole source of stability and social and political cohesion for a Westminster democracy.35 A federal democracy rejects decision-making by a simple majority in favour of the most important decisions being made by mechanisms (formal or informal) of collaboration. It is social pluralism, regardless of its historical origin and the way in which it is politically constituted, that imposes the idea of a division of powers. The power of a central structure is not and should not be absolute. Rather, it must coexist with the autonomy of the federated entities. The recognition of autonomy must be substantial enough to permit groups participating in a federation to manage their own affairs with the means at their disposal. In summary, it is not the majority who governs the minorities, but the minorities that are self-governing. The federation organizes this heterogeneity and does not oblige the ‘minorities’ to bow to demands defined by the general government. The sharing of powers guarantees the autonomy both of the federated entities and of the general government. It presupposes that the federated entities are exempt from all guardianship by and hierarchal links with the general government. The notion of non-subordination comes from this conception of a lack of guardianship and, thus, liberty within the areas where a federated government is presumed to be autonomous. In other words, the federated entities possess a legal status that comprises several jurisdictions in which they can exercise authority without fear of interference from the central power. Thus, federated governments are equal in status to the general government or the federal collectivity.36 Moreover, federal systems are ‘non-centric’ political orders because of the absence of the supremacy of one order of government and because the jurisdictions of a federated community cannot be unilaterally centralized. Non-centralization and decentralization are dimensions that are both distinct from and opposed to each other. Decentralization presumes a hierarchy of power, while non-centralization presumes non-subordination.37 Additionally, to be exercised, autonomy must be accompanied by appropriate means (financial, administrative, and legislative) and be sheltered from decisions coming from other governments.38 If the means are important in the implementation of the principle of autonomy, this question is less problematic in a federal society that is already organized to divide power and resources among several orders of government.39

The Quebec–Canada Dynamic  91

The principle of autonomy, which is justified by social heterogeneity and presupposes non-subordinate relations among constitutive communities, must be exercised in a concrete manner. Affirming the principle of autonomy obliges us to consider the manner in which sovereignty is understood. If the question of the sovereignty of the general state does not present a problem, the question of the sovereignty of governments within the federal state is thorny. Three approaches are possible. First, the trinomial doctrine conceives the federal state as a state of states; the first state is superimposed on state collectivities, which could be federal or unitary states themselves. Thus, sovereignty rests within the whole system codified by a set of legal norms. Its legal status defines the state to the extent that, within a federation, the two orders of government are decentralized and dispose of a part of the sovereignty: a judicial field for the whole territory exists (the general government or that of the union) within which are located several smaller judicial fields, each partial and attached to different territories. The relationship among the three orders (the judicial order is added to the two orders of government) is theoretically characterized by coordination (therefore an absence of subordination) because there is no delegation of powers between governments. Thus, it follows that the judicial order is materialized within the states of a federation. According to this approach, the federation cannot be understood as the sum of the orders of government. The second approach is a dualist doctrine, which would want sovereignty within a federal system to be shared by the general government and its federated governments, with each order acting in an autonomous and sovereign manner within its constitutionally delineated spheres. This position recognizes the coexistence of the orders of government as dual sovereigns, but also rests on certain special and circumstantial judicial dispositions. Finally, there is the monistic approach according to which the federal state may be considered to be a sole sovereign entity. Its different components also possess sovereignty. According to this position, sovereignty is indivisible because it represents the essential attribute that defines the modern state. Federated entities therefore cannot be sovereign and possess only a status corresponding to simple decentralized communities.40 Under this logic, federated entities are denied the status of state because their powers are surrendered to the judicial interpretation of the federal constitution. In other words, the power of federated entities is at the mercy of the interpretation of the constitution by a federal judge. The federal state is, therefore, essentially a decentralized

92  François Rocher

unitary state because within the constitution federal entities are subordinated to the general government.41 From a judicial and political point of view, the federal state should be analysed as a ‘technical composite.’ Federated entities cannot be compared to sovereign states because their powers are dependent on the constitution, which is not an international treaty. These powers could be unilaterally removed from the constitution, and it is possible that new powers could be added to the constitution without the consent of the federated entities. This line of reasoning can be summed up in very few words: federated entities are not independent under international law and therefore cannot exercise sovereignty.42 This way of viewing federalism rests on a narrow judicial conception of sovereignty and conveniently forgets to mention that the general government is as subordinate to the constitution as the federated entities may be. The first triptych in Figure 3.1 should not be used to justify the compartmentalization of the orders of government or to privilege an exclusively decentralizing federalism. The autonomy and the multiplicity of powers within the federated governments and the general state should be balanced by the necessity to establish reciprocal contacts. It should not be forgotten that the establishment of a federal state aims to create a multiform new space where the solidarity of heterogeneous groups should be expressed. The federation organizes this solidarity through common institutions.43 If the will to participate in the federation is economically, politically, militarily, and socially justifiable, then there are certain responsibilities that federated entities have towards the federation. The imperative of autonomy is tied to the requirement of cooperation and participation. Furthermore, federated communities should be conscious that the decisions they make, even within their own sphere of autonomy, could affect the other communities constitutive of the federal space. This interdependence obliges the putting in place of mechanisms to ensure dialogue and cooperation among the federated communities (horizontality) and between the federated communities and the general government (verticality). This cooperation could take different forms and express itself within different contexts. The necessity to cooperate is nonetheless ambiguous because, for example, federated entities could collaborate to limit the desires of the general government just as the general government could invoke the necessity of cooperation to force the adoption of orientations that it judges important. In other words, the concept of cooperation could take on different meanings depending

The Quebec–Canada Dynamic  93

on the interests of the actors who promote it. Thus, the notion of cooperation can be ideologically tinted (who would, in principle, be against cooperation?) and could be used as a method to justify all forms of collaboration regardless of their real content or meaning.44 It is for this reason that it is necessary to create mechanisms of collaboration that give life to the general concept of cooperation. However, the need to collaborate does not impose the obligation to achieve results. Collaboration could even contribute to the crystallization of the divergences expressed by different governments. Nevertheless, all orders of government must at least commit to participating in a dialogue concerning common problems and to adjust the federal organization to reflect this dialogue. The organization of collectivities described by Brugmans as a ‘regime of reciprocity’ compels both permanent dialogue and the denunciation of all blackmail.45 It should be noted that the recourse to interdependence (and the cooperation required by such interdependence) could produce effects that would cancel out the principle of autonomy and the accompanying principle of non-subordination. Few authors have emphasized the need for a clearer definition of the allocation of responsibilities. On the contrary, the tendency has been to insist that the consolidation of jurisdictions by the general government contributes to making constitutional borders disappear. In this sense, recourse to the principle of interdependence often turns out to be a pragmatic justification for the transferring of responsibilities from one government to the other (most often from the federated entity to the general government). Thus, ‘cooperative federalism’ is often understood as the presence of joint responsibilities with the goal of improving the collective well-being (the opposite would be surprising) of those who are conjointly governed. However, the focus on cooperation in this instance signals a transformation of the relations of force within the federation and reduction of the autonomy of federated entities. Max Frenkel, in his book Federal Theory (1986), points out that the centralist tendency is, in practice, accompanied by the growth of cooperation. He even adds that cooperation ‘has been considered to be a justification for national usurpation or […] one of the century’s most monumental trickeries.’ 46 Thus, it is important to circumscribe the principle of interdependence with care to avoid its initial meaning being reversed. This last warning reminds us that beyond the cliché of the ‘unification of diversity and unity,’ federalism calls for a collective transformation of societal consciousness. For Elazar, writing in Federalism and the

94  François Rocher

Way to Peace (1994), ‘the first step is a shift of minds of men from thinking statist to thinking federal. Once begun, the possibility for combining various arrangements of different degrees of scope and intensity has wide limits.’47 Thus, for the federal experiment to function well, it is required that the different federal components (states, groups, collectivities) abandon the idea that a concentration of power constitutes the best way to govern. In other words, a federal culture has to be valorized, promoted, and respected. Respecting a plurality of identities, their expression and a level of freedom, demands a certain level of ‘inefficiency’ and expense in a federal state as compared to a unitary state. The stronger the federal culture is the easier the acceptance of elevated costs and greater inefficiency will be.48 Thus, federalism, like all other forms of government, constitutes a response to the values present in societies characterized by diversity and pluralism.49 While federalism cannot be reduced to bargaining, its study should include that of the negotiation process. Societies claiming to be federal can call on a diversity of political arrangements but these must reflect the diversity out of which the society is constituted.50 Therefore, while the political act that directs a society towards the federal style of organization could be guided by economic or military considerations, or could be the result of a ‘reasonable marriage,’ to use Maurice Lamontage’s expression, the ultimate success of federalism depends on the correlation that exists between governmental structures and social consensus.51 Thus, the management of territorially defined social cleavages – whether of an ethnic, cultural, linguistic, or religious nature – becomes a major preoccupation. These general institutional and normative considerations allow us to put into focus five aspects that will illuminate our path to understanding the evolution of the federal idea in Canada. First, in a federal state, structures and attitudes are closely connected. The analysis of a mode of organization and its judicial, administrative, political, and institutional dimensions must not be undertaken independently of the exploration of the values of the society in which the mode of organization is embedded. There must be a level of congruence between the mode of organization and societal values. In this sense, the term federalism denotes both a system of thought and a collection of attitudes that are materialized within particular institutions. The central preoccupation is to analyse in what measure the institutions and political actors refer to federal principles when they search to develop solutions to the problems they face. In other words, how does the combination of the two

The Quebec–Canada Dynamic  95

triptychs, which are articulated by the notions of autonomy and interdependence, play a role in the political process; in what terms do actors refer to federal principles; and which representations of the society call on federal principles? Second, the presence of several orders of autonomous governments, and more generally a federal culture, implies both a double loyalty and a shared identity. Without loyalty towards each order of government, these would cease to exist.52 Loyalty expressed towards the general state, which coordinates solidarity, is as important as the reinforcement of the autonomy of the constitutive groups of a federation. For Delmartino and Deschouwer, ‘far from being imposed by (institutional) force, this loyalty is the natural consequence of the consciousness that all citizens contribute to diverse levels of society without which what is commonplace would not happen.’53 In other words, the corollary of the principle of autonomy (and the sharing of power which gives its meaning) is that neither order of government can speak in the name of all citizens and the whole of the political community. Neither the general state nor the federated entities, taken individually, can demand the right to represent all of the collectivities of society in an exclusive manner. In many ways, the division of powers corresponds to the requirement for double loyalty. Instead of competitive relations between the various orders of government they create complementary relations. To fully account for the totality of the needs of individuals and federated collectivities, one must take into consideration all orders of government. Once again, we must return to the dialectic that prevails among the principles articulated in the two triptychs. The presence of a shared identity or a federal identity does not imply the abandonment of other sources of collective identity. These other sources of collective identity should not appear as a threat to federal interests. Indeed, a federal identity must respect and be open towards citizens belonging to different collectivities. For Weinstock, this mutual and minimal social confidence ‘between groups who do not share the same national or ethnic identity will generate a common political identity which favours the reaching of values and social goals traditionally identified with societies possessing a strong national identity.’54 Thus, within federalism, the promotion of confidence in the general state could be favoured in diverse ways, such as making the reaching of the objectives of minority groups a priority. Third, the federal order, which encompasses a multiplicity of powers that are both autonomous and interdependent, cannot be definitive. To

96  François Rocher

emphasize the intrinsically evolutionary character of federal regimes is not new. However, beyond this truism, it is important to mention that the federation evolves not only because it is exposed to internal conflicts, but because it permits the expression and affirmation of such internal conflicts. Thus, it is not a question of eliminating internal conflicts but a question of channelling internal conflicts so that they may reinforce the federal culture. A federal system must contain a mechanism of ‘selfpreservation of the federal principle’ that permits the maintenance of equilibrium between the dynamics of unity and diversity.55 Fourth, the significance accorded to normative principles in relation to institutional arrangements underlines the importance of the function of legitimacy. This reality is even more important because the origin or the point of departure of the federal system is often interpreted to be the result of a treaty, a compact, or a reciprocal agreement. The recourse to the argument of a compact, as a source of legitimacy, is invoked most frequently in situations or discussions concerning the future of the federation that imply a perceived compromise by political actors. In other words, I would advance the hypothesis that the idea of an initial contract, or covenant, participates in the process of legitimacy principally in federations that are not consolidated and where the attributes of the federation do not correspond to an integrative national identity that ‘incorporates’ differences. 56 In other cases, the initial historical realities occupy a secondary place, and the emphasis is placed on government efficiency, what the system produces as public policies, and the judgments on public policy made from a political-administrative point of view. Federal legitimacy is, in large measure, dependent on the capacity to reflect normative principles. Moreover, federal legitimacy is reinforced by the necessary linkage between the presence of a federal culture and the institutions that nourish it.57 The absence of either a federal culture or the institutions to sustain that culture could only plunge the federal political regime into a profound crisis. This crisis would not take the form of disagreements over certain choices but the fundamental questioning of the conditions that allow the continuance of the federal political community. Finally, the terms pragmatism, compromise, consensus, equilibrium, agreement, collaboration, solidarity, dialogue, mutual respect, and the refusal of dogmatism are often used to describe the attitudes that prevail in ‘true’ federations with regard to both their creation and management. These notions are at the base not only of the legitimacy of

The Quebec–Canada Dynamic  97

the entire political system but also of federalism itself (as a system of normative principles) and federations (as material incarnations). Nonetheless, we must remind ourselves that all state forms as well as the justifications that surround them are the result of established power relations. As these relations of force change over time, it is normal for terms such as ‘compromise’ and ‘equilibrium,’ to take only two of the above examples, to be re-evaluated occasionally. It is therefore instructive to analyse the context in which these terms are used in order to evaluate the evolution of the federative entity through a predetermined grid that takes such notions into account. Pragmatism can be perceived as intransigence, the maintenance of equilibrium as a refusal to change, compromise as capitulation, collaboration as leading to impasse, the call to consensus as silencing the voices of dissidents, and so on. To canonize these fuzzy concepts would be to risk the substitution of a hermeneutic approach with the ideological justification, implicit or explicit, of certain political options. In searching for meaning, we fall into a prescriptive and descriptive dynamic: telling actors and institutions how they must act to correct a perceived ‘fault’ of interpretation. It is crucial not to forget that all of these key words are embedded in ideological representations and that the important link to analyse is that established between ideologies and their concrete institutional manifestations. Repeated a thousand times but too often ignored: the state needs a legitimating ideology to establish and maintain its hegemony. The Evolution of the Canadian Political System or the Negation of the Federal Ideal The interpretation of the Canadian federal regime differs greatly depending on its source. The Quebec tradition has insisted the federal system should reflect the spirit that preceded the foundation of the Dominion of Canada, but that multiple perversions and distortions that have followed since this initial compact. The interpretation outside of Quebec has focused on the public policies that the federal system has produced. This section will examine the principal elements that motivate these two interpretations, the conclusions that follow from them, and the prescriptions formulated to assure the continuance of the Canadian federation. Our attention will be focused both on the institutional aspects explored in the literature and the representations of the federal ideal on which rest value judgments concerning the origin and nature of, as well as the solutions to the problems by which Canada is confronted.

98  François Rocher

Contemporary representations of federalism have been consistently articulated for several decades. In Quebec, the dominant understanding of federalism and federal institutions has its origins in the Tremblay Report, named for the chairman of the Quebec government’s Royal Commission on Constitutional Problems, published in 1956. Since then, while evidently being adapted for particular political conjunctures, the Quebec–Canada debate has taken place almost exclusively within the argumentative framework set out in that report. Similarly, the literature in English on Canadian federalism, as well as the practice of federalism by the general government, follows the argumentation advanced by the Rowell–Sirois Commission, informally so named for its co-chairmen, in the Report of the Royal Commission on Dominion–Provincial Relations, published in 1940. Without reducing the complexity of the history of the Canadian federal system to these two documents, it is clear that they have shaped the manner in which intergovernmental relations and citizen–state relations are understood in Canada. The reasoning that we find in these reports has nurtured the way in which political actors and intellectuals have understood the evolution of the Canadian federal system and have interpreted the key events, such as the putting in place of the Canadian welfare state, the constitutional debate that culminated in the patriation of the Constitution of Canada, which included a Charter of Rights and Freedoms and an amending formula, the saga of the Meech Lake and Charlottetown accords, the creation of the North American Free Trade Agreement (NAFTA) – inspired by the recommendations of the Macdonald Commission (published in 1985) – and more generally, the diminishing role of the general government, which parallelled the increasing power of the provinces. It is my argument that the representations of federalism contained in the Rowell–Sirois and Tremblay reports, as well as the understandings that flow from these reports, do not respect the ideal and normative federal project – articulated within the above triptychs – that have as their central element the twin notions of autonomy and interdependence. To summarize my central argument in a few words: the dominant understanding of the English-language literature on Canadian federalism pays no heed to the notion of autonomy but emphasizes the notion of efficiency, while Quebec francophone scholars and the practices of the Quebec government have not adequately taken into account the notion of interdependence. If the institutional problems concerning the functioning of the federal system that are raised in the literature are often pertinent, the understanding of

The Quebec–Canada Dynamic  99

such problems is embedded in a mode of thought that leaves little place for a federal conception of the nature of relations that should characterize a federation. A Double Obsession: Pact and Autonomy The work on the evolution of federalism emanating from francophone Quebec emphasizes the Canadian federal system’s invariably centralizing character and desires the rehabilitation of the original federative idea.58 This interpretation must recognize that the political regime put in place in 1867 was not completely federal and, in fact, subordinated the provinces to the general government. The political regime of 1867 did not respect the principle of autonomy of the provinces; nor did it permit the provinces to participate in the decisions taken by the general government. Essentially, the above interpretation follows the principal arguments of the Tremblay Commission and adapts them to contemporary realities. The Tremblay Commission systematized the definition of both the place of Quebec within Canada and the formal conditions that interprovincial and intercommunity relations should respect within the Canadian federation. The definition of federalism used by the authors of the Tremblay Report was explicitly inspired by the classic works of Albert Dicey, Kenneth C. Wheare, and Georges Burdeau.59 The emphasis is placed on both the balancing of unity and pluralism, and the presence of two orders of equal and co-coordinated governments. The regional governments have the mission to protect the particular interests of their political communities. The Tremblay Commission insisted that the actions of each order of government should be limited to that order’s proper sphere of jurisdiction, within which it has independence vis-à-vis the other order of government. The principle of non-subordination thus occupied a place of privilege within the structure of federal institutions. Non-subordination was even presented as the ‘first and general idea of the regime, which applies to all authentically federal states.’60 The idea of non-subordination was institutionally manifested in the division of powers, the principle of the supremacy of the constitution – and its rigidity, in order to avoid unilateral amendment, at least in areas involving the division of powers – and the supremacy of the courts. Thus, the smooth functioning of a federation is guaranteed by the presence of an attitude of cooperation that valorizes the spirit of independence and separatism on the part of regional governments, while opposing the

100  François Rocher

thrust towards unification and domination on the part of the federal government. The notions of compromise and ‘spirit of association’ are important here because they denounce all ruptures in the ‘delicate and minute’ equilibrium in favour of one order of government.61 The question of the origins of the political system is central because it determines the way in which the federation is evaluated and its evolution judged. The reading of the British North America Act of 1867 by the Tremblay Commission illustrates the clash of two tendencies: the unitary spirit embodied by John A. Macdonald and the federal spirit articulated by those who wanted the provinces to have real autonomy and sovereignty.62 Supported by a particular reading of the events that led to the adoption of the BNA Act, the Tremblay Report claims that ‘there is no doubt that within the Canadian Parliament the Resolutions of Quebec were presented as an inter-provincial pact […] Confederation is principally the work of provinces and it could be characterized as an inter-provincial pact. Indeed, that was how it was presented to the Imperial Parliament.’63 To this dimension of an interprovincial pact the multinational character of the federal organization must be added. There was a union not only between territorial collectivities but also between national communities who were officially recognized by the Constitution and who would actively participate in the functioning of the regime. It is this singular reality that explains, for the most part, the fact that the political system adopted took a federal form instead of the unitary form advocated by John A. Macdonald and others. The spirit of the federation rests on the implicit recognition of the equal treatment of two national peoples as associates and partners, each possessing rights regarding and ensuring the survival of their group within the Canadian union. Within this perspective, the question of provincial autonomy is vital to the extent that Quebec is the only province that has a French (and Catholic) majority that needs judicial and political structures to ‘defend and maintain itself’ in a Canada where the majority is English (and Protestant). In other words, Quebec is presented as a ‘distinct society,’ and its minority status within Canada demands respect for its autonomy and its constitutionally recognized powers (powers that it can decide to exercise or not). The political federation can also be presented as a national federation. For the Tremblay Commission: ‘A federation of this type only has the chance to function well if, within all degrees of the political order, there reigns a true federalist spirit which embodies the spirit of association, collaboration and respect for the variety and complexity of social life. This spirit is even more necessary

The Quebec–Canada Dynamic  101

when the majority group is in practical control of the governmental apparatus and can make it serve almost exclusively its members. The temptation becomes great for the majority group to use state power not as an agency for union between the two groups – which it should be – but as an instrument of unification, assimilation and maybe even domination and oppression.’64 This is why the Tremblay Commission was in favour of the realization of a federalist order, instead of undermining this by resorting to means that would lead towards a unitary state. To assure the coherence of its argument, the commission could not content itself with establishing the characteristic of partnership within the BNA Act – under the form of a pact between the provinces and the founding nations. The commission also had to affirm the true federal character of the political system. This line of reasoning was imposed on the Tremblay Commission because of its explicit desire to legitimate the notion of the autonomy of federated entities. In other words, if the system had never been a ‘true’ federation, it would be impossible to call on federal principles to defend the respect of provincial jurisdiction. Thus, the powers of disallowance and reservation and the nomination of lieutenant governors and judges to criminal courts by the general government are exceptions to the rule within a law that generally delineates clear provincial and federal jurisdictions. These unitary elements are the remains of an imperial tradition and do not permit the general government to encroach on exclusively provincial jurisdictions.65 Contrary to the argumentation advanced by Wheare,66 the Canadian political system cannot be qualified as quasi-federal because the federal principle is predominant and the parliamentary model (which applies to the two orders of government) tends to cancel out the effects of the unitary elements.67 For the Tremblay Commission, the debate is closed because this interpretation was officially endorsed by the Judicial Committee of the Privy Council (JCPC) in London. For the Tremblay Commission, it is the conception of federalism advanced by the JCPC that would be predominant in the postwar era. The centralization of the political system would be measured according to the unique criterion of the intrusion of the general government within provincial jurisdiction. Thus, the commission denounced the return of federal ‘imperialism’ that would ‘revive within the Canadian community the colonial regime that existed under the British Empire.’68 The initiatives of the general government – fiscal agreements, rulings of the Supreme Court of Canada as the last instance, since appeals to the Judicial Committee of the Privy Council were abolished in 1949,

102  François Rocher

and amendments to the Constitution – followed a unitary logic. They followed this logic to the point where the Tremblay Commission asks and then answers: ‘Are we still in a federal regime? No simple answer is possible to this question because, even if judicial interpretation up to the present gives us an authentic federalism, the policies of the central government since the war impose only a quasi-federal regime. Since the time of Confederation, the ideas so dear to Macdonald, such as a strong central government, which subordinates provincial legislatures as if they were municipalities, have never been so close to being realized.’69 In the eyes of the Tremblay Commission, the provinces have reacted differently to this recent transformation. Certain provinces have passively accepted the consequences of an evolution that they judge to be inevitable, while others have taken the decision to discharge their obligations to the general government. Only a few provinces have sought to maintain their full powers. In summary, the process of centralization offers provinces three choices: accept the imperial unilateralism of the general government, envision a path of separatism, or declare loyalty to federal principles. Already in 1956, the options that would continue to animate the Quebec–Canada dynamic for decades to come were present. It is in the name of democracy, political stability, and respect for the federal principle that the Tremblay Commission recommended that Quebec demand ‘a sincere practice of federalism. Quebec renders an important service to the whole Canadian nation because it has long understood, and Quebec is not the only province to do so, that vigorous provincial institutions are indispensable to the political stability and maintenance of democracy in Canada.’70 While the Tremblay Commission’s report is almost entirely devoted to the philosophical, historical, judicial, and institutional justification of the principle of provincial autonomy –and therefore the principles of heterogeneity and non-subordination – it devotes only six pages to the matter of how the principle of interdependence should be materialized. Of course, the notion of collaboration is invoked on several occasions, but there is never a reflection on how to incorporate the concept of collaboration into federal practices. The question of the coordination of policies, which is nonetheless essential to respecting federal principles, merits only superficial consideration in the commission’s report. Paradoxically, the reasoning developed in these six pages of the report, under the pretext of the normative and institutional justification of the principle of interdependence, only contributes to reinforcing ‘the federalist spirit’ that is summarized by the respect for autonomy.

The Quebec–Canada Dynamic  103

The Tremblay Commission emphasized that within democracy the divergence of opinions is a fact and is not necessarily negative. Such divergence calls for a certain coordination of policies that should nevertheless be clearly distinguished from the policies aimed at imposing uniformity. When discussing coordination, the Tremblay Report states firmly that the general government should not be held up as the sole guarantor of collective well-being. In a system that is both federalist and democratic, the solution to the problem of coordination of policies is not the suppression or weakening of provincial authorities but the persuasion and putting in place of common organisms that respect the dignity and liberty of provinces. While coordination does bring about certain difficulties, the disadvantages are largely compensated for by the virtues of the federal regime (such as the respect for differences). In the end, the Tremblay Report proposes the creation of permanent organisms of collaboration that would function in a true federal spirit.71 As we can see, the collaboration envisioned in the Tremblay Report aims only at the preservation of provincial autonomy. Furthermore, behind the report’s defence of autonomy is hidden the desire to reduce ‘socialist’ state intervention in favour of a traditional and conservative vision of social relations in Quebec.72 The critique of the Tremblay Report’s approach, formulated notably by Frank Scott, was that it treated the BNA Act as the fruit of a pact where the objective was to guarantee conditions that would assure the vitality of the minority community: ‘But in making that purpose in effect the sole purpose of Canadian federalism, and then postulating certain elements as essential to the preservation of a culture and selecting the government of Quebec as the sole representative of that culture, it arrives at very radical conclusions.’73 For Scott, a radical conclusion was the report’s negation of the contribution that Quebecers (and their government) could make to the construction of the Canadian political community. Scott goes on to contend that the report contains ‘a one-sided argument, and not, like the Rowell–Sirois Report, which preceded it, an attempt to find a synthesis acceptable to two contrasting theses.’74 The compact theory appears to Scott to be both negative (in that it does little to further the construction of a Canadian political community) and static (it prevents all constitutional modification). It does not offer criteria to determine in what measure the Constitution adequately responds to contemporary challenges. Further, Scott believes that compact theory does not provide an argument to increase provincial autonomy beyond what

104  François Rocher

was inscribed in the Constitution of 1867 (formerly, the British North America Act). Scott’s rejection of compact theory cannot be explained by reference to the principle of interdependence (he proposes a legalist as opposed to a social reading of the Constitution) but through the fact that compact theory legitimizes the thesis of two founding nations, according to which Quebec ceases to be a province like the others under the firm rule of the ‘national’ government in Ottawa. In sum, it is the constitutive duality of the federal state that is rejected by Scott in favour of a reading of Canadian federalism that valorizes unitary principles and attempts to place these at the core of the organization of Canadian political institutions. This critique of Scott’s critique should not make us forget that he is nonetheless correct in noticing the negative (or defensive) character of the approach taken by the Tremblay Commission. It is important to recognize that even if federalist political theory was undeveloped in the middle of the nineteenth century,75 the notion of a federation nonetheless made reference to the idea of association or treaty. In this respect, we should recall LaSelva’s argument for fraternity and the political project of George-Étienne Cartier, one of the Fathers of Confederation, which aimed to create a new political community while preserving the rights and interests of the federated entities.76 In other words, it was the constitutive diversity and the recognition of multiple identities that would guarantee the proper functioning of the federal system; the project aimed at founding a new political community (qualified as a new form of nationality) on the basis of existing communities.77 The insistence on the principle of autonomy to the detriment of the principle of interdependence could be explained by the fact that, in the first debates within Quebec concerning the project of a (con)federation, the emphasis was placed on the reality that French Canada constituted, both geographically and ethnically, the most important and homogeneous nationality within the colonial space. Historian Arthur Silver, who in The French-Canadian Idea of Confederation (1982) reminds us that French Canada was identified as Lower Canada, writes: ‘It followed from this equation that provincial autonomy was to be sought in the proposed constitution as a key safeguard of the interests of French Canada.’78 Thus, in the political discourse of the time, the necessity to assure French Canadians the maintenance of their civil and religious rights was sought through the compartmentalization of powers between the two orders of government, and through respect for the principle of provincial autonomy. However, the federalist project was

The Quebec–Canada Dynamic  105

not greeted with universal approval, as demonstrated by the debates held in the different legislative assemblies concerning the issues and meaning of Confederation.79 There were critiques regarding the imperial character of the process leading to the British North America Act (pressures from the Colonial Office in London), an absence of consultation with the legislative assemblies, secrecy surrounding the negotiations, and the imperial character of the new political system.80 Nevertheless, in Lower Canada the propaganda of federal project supporters emphasized provincial autonomy and the fact that French Canada would have its own province. Silver has demonstrated that the powers to be attributed to the central government in Ottawa were greatly underemphasized in the way that the Confederation project was presented in Lower Canada.81 It is not surprising that the Tremblay Commission, having so strongly insisted on the first principle (autonomy), was almost completely silent with regard to the second principle (interdependence). This imbalance constitutes no less than the distortion of the federal ideal, a distortion that subsequently had a profound influence on the way political discourse was articulated around the question of the Quebec–Canada dynamic. Since the end of the Second World War, the Quebec–Canada dynamic has been evaluated in Quebec through the intellectual framework established by the Tremblay Commission; circumstances change, but the questions remain more or less the same, and the conclusions are invariably identical. The centralization of the federal system is caused by the numerous intrusions of the general government into provincial jurisdictions originally established in 1867. This lack of respect for the initial division of powers coupled with an ever-increasing interventionism on the part of the general government translates into the creation of a unitary, even imperialist, political regime, as was feared by the Tremblay Commission. As mentioned by Gilles Bourque and Jules Duchastel, in L’identité fragmentée: Nation et citoyenneté dans les débats constitutionnels canadiens, 1941–1992 (1996), until the 1960s the refusal of the Quebec government to embrace the principles of the welfare state prevented the evolution of Quebec nationalism. The development of the welfare state produced the same results in Quebec as elsewhere in Canada: ‘an essentially political community, the nation Quebeckers henceforth would identify itself with the territory and state of Quebec.’82 However, unlike in English-speaking Canada, which, due to its hegemonic civic form of

106  François Rocher

nationalism, was able to put forth a universal concept of citizenship (we will come back to this aspect later), the representation of political communities in Quebec, because of its minority status, could only make a cultural reference in articulating a conception of citizenship. In doing so, ‘the Quebec political-cultural nationalism could not easily be integrated to the Canadian national ideology of particularistic citizenship.’83 Quebec governments were attributed the responsibility to represent the Quebec community – defined as the Quebec nation – within the Canadian political space.84 They attempted to obtain recognition not only of the existence of the Quebec nation, but more importantly of the fact that the Quebec nation was represented exclusively by the government of the Province of Quebec, the sole institution deemed capable of understanding the aspirations, satisfying the needs, and defining the future of the Quebec nation. Following from the recognition of the need for the general government to respect provincial jurisdiction, the Quebec government during the Quiet Revolution demanded the recasting of Canada’s Constitution in order to obtain powers that it judged to be indispensable to the affirmation of the Quebec identity in all spheres of activities – economic, social, political, and cultural. The planned expansion of the role of the Quebec state was at the base of the argument in favour of securing a special status for the province, or asymmetrical federalism. As Premier Jean-Jacques Bertrand stated in 1969: ‘What is important for French Canadians in Quebec is not to be able to speak their own language throughout Canada but to be able to collectively live in French and construct a society which resembles them. This is only possible if the government of Quebec possesses powers proportional to the tasks which the population expects of it.’85 In similar terms and almost thirty years later, Premier Lucien Bouchard affirmed that ‘past Quebec governments, independent of the political option, have always sought to reaffirm the jurisdiction of the Quebec state in order to favour control by the Quebec people of their economic, social and cultural development as well as their political institutions.’86 The territorial limits of this ‘society that resembles them’ are those of the province of Quebec. The intervention of the general government within provincial jurisdictions is viewed negatively. If the general government gives out subsidies, those subsidies must not only be approved by the Quebec government but must also be granted unconditionally. For the Quebec governments, the Quebec–Canada dynamic is illustrated through several concepts: attachment to the principle of autono-

The Quebec–Canada Dynamic  107

my, respect for and the expansion of provincial jurisdictions, achieving a distinct status, and asymmetrical federalism. The position of Quebec governments (and the majority of Quebec’s intellectuals) is not one of holding back Quebec. Rather, what Quebec governments aim at is the construction and legitimatization of a ‘national’ political space that corresponds to the proclaimed and proven particularities by which Quebec defines itself as a ‘complete society.’87 It is remarkable to note that this construction has taken place, both at the discursive level and concerning the Quebec–Canada state relations, on the basis of the non-participation of Quebec in the building of the Canadian political community. In other words, Quebec’s relationship with the rest of Canada is primarily utilitarian (Premier Robert Bourassa spoke of a ‘profitable federalism’). Viewed logically, the insistence on representing the federal regime as the result of a pact, as argued in the work of the Tremblay Commission, creates the three political options put forth by the commission that have been at the heart of Quebec political life for the last five decades: the acceptance of a unitary state, separatism, or reform inspired by the ‘true’ spirit of federalism. Note that the sovereigntist political project is outside this federal logic. However, the third option that supports loyalty to federal principles has always insisted on the defence of autonomy over interdependence. The Charest government is without a doubt the Quebec government that searched the most to rearticulate the federalist vision of Quebec. Benoît Pelletier, former minister of intergovernmental affairs (2003–08), id­enti­fied three ideas that constitute the essence of the position of the Que­bec government within intergovernmental affairs: affirmation, auto­­nomy, and leadership (see his contribution in the Appendix to this volume). It is through the articulation of these three principles that the Charest government justified the creation of the Council of the Federation. The conception of the council rests on a strongly negative perception of how the Canadian federal system has evolved over the course of the past three decades. In fact, the judgment of the Quebec government concerning the manner in which the Canadian government has acted is implacable. The former reproaches the latter for simplifying the constitutional status of the provinces by putting in place ‘partnerships’ with the intention of intruding in areas of provincial jurisdiction – which creates confusion for citizens, who no longer know who is accountable for which government activity – for refusing to collaborate with the provinces, and for denying the existence of a fiscal imbalance. Indeed,

108  François Rocher

the Quebec government feels that the fiscal imbalance allows the federal government to invade provincial jurisdictions through the federal spending power. Moreover, Ottawa frequently makes the extension of federal transfers subject to conditions that ignore provincial particularities, limit autonomy, and diminish the power of provinces to intervene in their own societies. In sum, not only do such tendencies weaken Canadian federalism, they are incompatible with federal principles. Let us recall that federal principles demand respect for the constitutional role given to each order of government and refuse to impose a relation of subordination between one order of government and another. Therefore, it was to counter these multiple ‘perversions’ that provincial governments accepted the invitation of the Quebec government to create the Council of the Federation in December of 2003. The stated goal of the council was to ‘give provinces the influence and the strength necessary to become veritable partners in the Canada of tomorrow.’ This new institution would seek to counter the idea that only the general government can act as the architect of ‘Canadian’ projects and allow the elaboration of policies in areas that are of interest to the two orders of government, instead insisting on the need to take into account the point of view of the provinces.88 In the past, the federal government could easily interfere in provincial jurisdictions by simply taking advantage of the divisions among provincial governments. The defensive stance of the Council of the Federation is complemented by some ‘federal necessities’: solidarity, pooling risks and economic and social opportunities, sharing information and expertise, and full participation in the development of Canada (see Pelletier’s Appendix in this book). However, these federal necessities do not compensate by themselves for the structural imbalance concerning the concrete powers that the two orders of government possess and exercise. This structural imbalance rests on the growth of the powers of the general government through the invocation of the theory of national dimensions, residual and declaratory powers, the federal spending power, power over nominations to the Supreme Court and other institutions, and the centralist interpretation of the Constitution by the Supreme Court.89 The Council of the Federation seeks to reactualize the founding principles of the Canadian federal system, such as respect for the Constitution, respect for the role of each order of government, and respect for the inherent differences that it is the federation’s function to accommodate.90 The mission of the council is more or less the return to a ‘cooperative federalism,’ defined by Quebec Premier Jean Lesage in 1964

The Quebec–Canada Dynamic  109

as ‘the beginning of a new era in federal-provincial relations and the adaptation of the dynamic of Canadian federalism. Federalism should be defined in three ways: (1) a regular cooperation at the moment decisions are made concerning new policies; (2) a constant consultation in the application of policies; (3) the allocation to provinces of necessary financial resources to fulfill their given responsibilities.’91 It is difficult to argue that the vocabulary has drastically changed since Lesage’s era. From the point of view of political institutions and the normative project of federalism, the dominant approach in Quebec is problematic in many ways. First, the emphasis on notions of pluralism, autonomy, and non-subordination is clearly disproportionate to the scant attention paid to the concept of interdependence. This imbalance was present in the work of the Tremblay Commission and has since been consistently reproduced. The desire to construct a ‘complete’ Quebec society has privileged the expansion of the spheres of sovereignty of the Quebec state and sought disassociation from the Canadian political space. In this context, the necessity of a double loyalty within the federal space proves impossible to articulate. Although the Quebec approach is not resistant to all modifications of the sharing of jurisdiction, the constitutional preoccupations of the political elites were aimed at the construction of a ‘complete’ Quebec society and were not sympathetic to the possible need to participate in the building of Canadian political community. Instead, the Quebec political elite has rejected all ‘pragmatic’ evolution of Canada’s Constitution that would lead to the ‘decompartmentalization’ of jurisdiction or the intervention by the general government in jurisdictions initially attributed to the provinces. Finally, my exploration of the federal ideal of the Quebec political elites reveals that it may simply be an impossible concept to realize. In effect, a dominant reading of what was founded in 1867, shared by all the political and institutional elites in Canada, has never taken hold. Thus, the Quebec interpretation, which involves the concepts of an original compact and respect for an initial constitutive diversity was always problematic: it can be rejected by invoking its mythical character,92 it can be declared incompatible with the dominant interpretation of Confederation found in other parts of the country, or it can be invalidated by the argument that the foundation of Canada rests on an initial ambiguity that needs clarification.93 In 1958 Arthur Lower judged that multiple interpretations of Confederation, coupled with the arrogance displayed by several English-speaking Canadians, was the source of

110  François Rocher

the tensions and animosities that could place Canada in peril.94 Almost a half a century later, some are making the same observation.95 A Double Preoccupation: Performance and Legitimacy The interpretation of the federal regime within English-Canadian literature emphasizes the transition from a highly centralized system, in which the general government could intervene in provincial jurisdictions using declaratory powers of reservation and disallowance, to one of the most decentralized federations in the world.96 The narrative is generally the following: The recourse to unitary mechanisms has diminished over time to the point where the power of disallowance has not been exercised since 1943. Responding to the demands of the provinces, including Ontario, the Judicial Committee of the Privy Council (JCPC) in London rendered several decisions that contributed to the ‘federalization’ of the Canadian political system through forcing the general government to respect the original division of powers. Therefore, the authority of the provinces was confirmed and their subordination to the general government was reduced. The compartmentalization of jurisdictions imposed by the JCPC, and qualified by Wheare as constrained and rigid, limited the possible actions of the general government and prevented it from responding in an effective manner to the economic and social challenges posed by the Great Depression. However, by the middle of the 1940s, mechanisms of intergovernmental cooperation had rendered possible the construction of a welfare state; these changes and this level of cooperation were realized without having to modify the text of the constitution (the BNA Act). Ultimately, the growth of the Canadian state made the compartmentalized model of federalism obsolete. The increase in the size of the Canadian state was accompanied by an interpretation of the federal regime that aimed less at accommodating its constitutive communities and more at a ‘pragmatic’ approach to the sharing of jurisdictions. The increase in state interventionism was not limited to the federal government, as the provinces themselves became more active in the areas of health care, education, social services, and economic development. The development of state interventionism made the two orders of government compete with each other for the loyalty of their citizens.97 Postwar federalism has been characterized by a dense overlapping of jurisdictions, an interdependence of policies, and a greater level of intergovernmental competition. Thus, several mechanisms of ‘intergovernmental

The Quebec–Canada Dynamic  111

collaboration’ were put into place through the increased practice of executive federalism. In summary, federalism within English-Canadian literature is presented first, foremost, and above all as a formula or an arrangement relative to the exercise of power. Viewed through the lens of functionality, the overall evaluation of the Canadian political system is generally positive despite the inevitable tensions it creates. Herman Bakvis and Grace Skogstad have well summarized this point of view: ‘By most standards, the basic institutional and constitutional framework underpinning Canadian federalism has performed remarkably well. The original constitutional document, (the Constitution Act of 1867), enabled, among other things, political and economic union in 1867; critically, it was able to accommodate Quebec’s unique needs at that time. Later, adjustments to federal and provincial powers through judicial review, formal amendment, and changes in conventions allowed Canadian federalism to adapt to major changes brought about by the entry of new provinces, war, economic development, depression, and new policy challenges.’98 It is important to note that Bakvis and Skogstad argue that the British North America Act created a political and economic union to respond to the needs expressed by Quebec in 1867. The rest of history was characterized by adaptations to new economic and political realities. Since Canada survived these changes, Bakvis and Skogstad must tautologically conclude the success of the federal experience. On the whole, the criteria used to evaluate the evolution of the Canadian political system make little reference to the dimensions pertaining to the normative federal project.99 Richard Simeon remarked that recent studies have mostly emphasized the analysis of the efficiency of public policies. The value judgments contained in these studies are not concerned with notions of autonomy or interdependence but with the themes of democracy and access to the exercise of power, social justice, and equality – and only secondarily with the accommodation of the constitutive communities (Quebec and First Nations).100 Moreover, the analysis proposed by Richard Simeon and Daniel Patrick Conway of the conditions for an adequate management of conflicts in multinational democracies does not take into account the significance that political actors attribute to the federal project, because they understand federalism solely through the institutions put in place by federal regimes.101 Bakvis and Skogstad illustrate this change in perspective when they enumerate three federal criteria to be privileged: performance, efficien-

112  François Rocher

cy, and legitimacy. Weak performance, caused by gridlocks in intergovernmental relations or executive federalism, normally leads to inefficient public policy. Under such conditions, problems are not resolved. The search for an interprovincial consensus, generally considered to be an indicator of the good performance of a federation, does not necessarily lead to effective policies. There could be implicit agreements to ignore important problems. The legitimacy of a political regime risks being undermined if it is incapable of responding to the needs expressed by its citizens and if it is unable to illustrate sufficient flexibility in accounting for regional preferences. Citizens will lend their support to federal practices only if they produce public policies that are judged effective, and only if the process to formulate those policies is open, transparent, and accountable.102 As such, federalism is judged in English-speaking Canada on the basis of what it produces, not on the the principles that underlie it.103 This pragmatic, managerial, and functional approach corresponds to what Simeon and Robinson call ‘modern’ federalism. It traces its origins to the gradual construction of the welfare state that led to a decompartmentalization of jurisdictions. Far from realizing greater decentralization, the modernization of Canadian federalism in the postwar era was achieved through the growth of both orders of government, the overlapping of jurisdictions, and the establishment of mechanisms of cooperation. While the notion of decentralization is never clearly defined, it is implicitly understood as the augmentation of the influence of provincial governments (which is measured through the growth of provincial public expenditures and bureaucracy in relation to the central government’s increase in expenditures and bureaucracy) and the resistance of provincial governments to the exclusive consolidation of the authority of the general government. In this perspective, it is not important if the division of powers is respected or not. The proliferation of public policy has increased considerably the level of interdependence between the orders of government, to the point where the initial division of powers is no longer referenced. Such interdependence has also limited the capacity of the general government to act unilaterally, due to the decentralization associated with the growth of state intervention and the practical obligation for the central government to take into account provincial interests: ‘Increasingly, the federal government found itself in the position of having to consult, coordinate and, inevitably, compromise in the face of mounting federal–provincial conflict; the declining efficacy of a federal system that increasingly required intergovernmental good will to function coherently.’104

The Quebec–Canada Dynamic  113

This mode of understanding Canadian federalism with its insistence on efficiency, transparency, legitimacy, and more specifically, the capacity to deepen democracy is not new. Already in 1940 the Rowell–Sirois Report displayed a political discourse in which the concepts of efficiency, rationalization, (fiscal) equity between the two ‘orders’ of government, constitutional flexibility, and national unity occupied a central place.105 Indeed, the quest for efficiency and the rebalancing of federal–provincial relations was at the heart of the mandate of the Rowell–Sirois Commission. However, since the publication of the report, observers have noted the absence of deep reflection on the underlying principles of the Canadian federal system.106 Nonetheless, similar to the Tremblay Commission, the Rowell–Sirois Commission played a determining role in the understanding of federalism throughout Canada. For the Rowell–Sirois Commission, the Great Depression illustrated beyond a shadow of a doubt that the Canadian political system, with its compartmentalization of jurisdictions and the resultant sharing of fiscal resources, was poorly equipped to effectively manage the rudimentary programs of social protection that existed at the time. The provinces were unable to meet new and emerging needs because of inadequate financial resources, ever-growing expenditures, and taxation revenues that were unequally allocated (there was already a question of horizontal fiscal imbalance at that time).107 The logical conclusion was that the general well-being of citizens could not be assured unilaterally by the provinces and that the Constitution was poorly adapted to new social and economic conditions. In his analysis published in 1954, Maurice Lamontagne stated that ‘the sovereignty of provinces had become much more of a danger than a protection due to the importance of the tasks to be accomplished and the difficulties to overcome.’108 In other words, long-term economic stability and the well-being of all Canadians could only be assured by the general government through the dominant position that it must occupy within the country. Beyond the observations of the Rowell–Sirois Commission on the distribution of financial resources and the desirable mechanisms of transferring provincial powers to the general government, the general philosophy of the commission attempts to legitimize a more functional approach to the federal regime. Thus, the principle of provincial autonomy was never directly questioned in the areas of health care, social assistance, and education. In the same vein, the centralization of powers was never favoured in order to respect regional particularities.109 While the commission held that the areas of health care, education, and social services clearly belonged to the provinces, it was adamant that

114  François Rocher

the areas of unemployment insurance and old-age pensions were fed­­eral jurisdictions because they have an inherently pan-Canadian character. Nowhere is it explained why some jurisdictions belong ‘inherently’ to the central government while others must remain the responsibility of the provinces.110 Nevertheless, the commission rejected the idea that the general government has the sole responsibility to define the norms that should be respected by the provinces.111 The novelty of the approach put forth by the Rowell–Sirois Report was not in its search for a new division of powers that would favour the general government, but its argument for the decompartmentalization of federalism. In this respect, the notion of interdependence is well represented in the report. Indeed, if the general government and the provinces have to cooperate in the creation of public policies, neither order of government could impose its authority in the pursuit of jointly defined objectives.112 However, the commission vigorously defends the principle of the delegation of powers from one order of government to another. This practice would avoid overlap and reduce the political and administrative rivalries between governments. If the problem of the promotion of national unity, which is mentioned in the mandate of the Rowell–Sirois Commission, is not the subject of lengthy discussions, its desirability is never questioned and its pursuit can only be justified for practical reasons. For the commission, ‘Canadians are so proudly conscious of the national unity which they have achieved, and so respectful of the federal system that has made this unity possible that there may be some danger of their thinking of national unity and of the federal system in the abstract as having some special merits which make them desirable in themselves.’113 Therefore, a unitary vision of Canada cannot be justified by invoking the need to reinforce national unity. This warning dates from the era when the untangling of the Canadian identity from that of the British Empire’s subjects was in its initial stages. If the Rowell–Sirois Commission appears to be a turning point in the way in which Canadian federalism was understood, it is partially because public debate was more interested in the matter of the division of powers and the policies that could be adopted than the issue of intercommunity relations. The construction of the Canadian state led to the emergence of new inquiries concerning the meaning of Canadian ‘nationality’ and the new role that the state should play in economic and social areas.114 The federal–provincial conference held in January 1941 did not adopt the principal recommendations of the Rowell–Sirois Report, and certain

The Quebec–Canada Dynamic  115

provinces (Ontario, British Columbia, and Alberta) rejected the new fiscal arrangements, which they felt would circumscribe their capacity to act. In Quebec, Premier Adélard Godbout was sharply criticized for not vigorously defending the principle of provincial autonomy.115 Despite the opposition fostered within certain provincial capitals, the emergence of a welfare state confirmed the necessity of a new mode of economic and social regulation that imposed references to Canadian citizenship, the Canadian people, and the usage of the qualification ‘national’ to legitimize Ottawa’s intervention. As part of this thinking process, there emerged ‘the notion of citizen, which is embedded […] in a resolutely providential perceptive which contributes […] to the representation of country as a totality.’116 Ironically, the discursive references to the image of ‘the national’ illustrate the establishment of a ‘national popular citizenship that, paradoxically, economized the idea of nation.’117 The void left by the absence of an identity reference articulated around the idea of the nation was filled by the representation of the community through the notions of citizen, people, and the ‘national’ qualification, as well as the idea of society. The idea of society crystallized the fractured character of Canada by presenting this society as both a sum of particularities and the site for the affirmation of citizenship. At the beginning of the 1950s, this push towards the building of a Canadian ‘nation’ was evident in public discourse. The Report of the Massey Commission (published in 1951), which dealt with the advancement of the arts, held that the common good should be pursued primarily by the general government: ‘If the federal government has to renounce association with social groups, of a public or private character, within the area of education of Canadian citizens it fails in its moral and intellectual goals, completely loses view of a true notion of common good and Canada, considered as a nation, will transform into a materialist society.’118 Thus, the emphasis on questions of identity gradually replaces preoccupations with loyalty. These founding principles of Canadian citizenship were not simply individualist. They are embodied in the direct relation maintained by individuals with the state through the social and cultural programs that have become symbols of ‘Canadianness.’119 This change in perspective permitted the Canadian federation to gradually transform itself without having to make numerous formal modifications to the Constitution. Intergovernmentalism, presented as the vector of flexibility,120 became the principal preoccupation of elites and political analysts in Canada. The challenge was not framed around

116  François Rocher

the normative principle of the ‘interdependence’ of the two orders of government in the building of a national Canadian state. As Smiley already had commented in 1968, ‘provincial autonomy is obviously incompatible with the claim that Canadian citizens as such have the right to defined standards of health, welfare, and education services and the corollary of this proposition is that the federal authorities have in the last analysis the responsibility of securing these rights.’121 It is this process of ‘nation-building’ that Pierre Elliott Trudeau perfected in 1982 with the patriation of the Constitution and the entrenching of the Canadian Charter of Rights and Freedoms. The significance and the political consequences of the consolidation of the Canadian identity has been the subject of numerous analyses that have emphasized the rejection of a binational and bicultural conception in favour of a unitary and multicultural Canadian nation, the diminished status of Quebec through patriating the Constitution without its consent, the atomization of political relations, and the reduction of provincial legislative jurisdiction in the management of the linguistic regime.122 At the beginning of the 1980s, Canada proceeded to recast the principles on which it was based. At the centre of this process was the Charter, which not only defined ‘Canadian values’ but became the basis of the contract between Canadian citizens and their state. As André Burelle reminds us, the federation of 1982 rests on a republican unitarism in line with the principles of anti-communitarian individualist liberalism. Thus, individuals are merged within a singular ‘civic’ nation (the term political community is never used because it connotes a functional relationship with a state capable of preserving community identities) in which political sovereignty is exercised only by the general government.123 The constitutional regime could confide certain powers to provincial governments that they are better placed to exercise, but such a process would not involve formal decentralization but rather depend on devolution.124 This mode of understanding of the Canadian federation accepts a hierarchical vision of the two orders of government (it would be more appropriate here to speak of ‘levels of government’ to conform to the dominant representation) and legitimizes the absence of limits to the actions of the central government in the name of providing enough flexibility for dealing with the complexity of problems that the central state must face (often such problems do not conform to geographical limits). The reinforcement of the central government’s power to intervene is justified by the need for economic and political coherence and social

The Quebec–Canada Dynamic  117

justice. The first need is found at the heart of the reasoning of the Royal Commission on the Economic Union and Development Prospects for Canada (the Macdonald Commission) in its 1985 report. The consolidation of the economic union clearly aimed at the strengthening of the Canadian identity.125 The second need, social justice, was most clearly articulated in the Commission on the Future of Health Care in Canada (Romanow Commission) that, in 2002, depicted the public medicare system as a quasi-sacred entity. It is revealing that the chapter on ‘Health Care, Citizenship and Federalism’ was introduced by the following quote from the commission’s public hearings: ‘Medicare has as much iconic force here as the Constitution does in the United States.’126 This is why the commission notably recommended the negotiation, in ‘respect for provincial jurisdiction,’ of a deal on health care in which provincial and federal governments would subscribe to a certain number of values (universality, equity, solidarity, efficiency, effectiveness, accountability, and transparency). Such a pact was presented as a Charter of Rights for Patients similar to the Canadian Charter of Rights and Freedoms. Within these two examples, it is important to emphasize that the representation of Canadian citizens is as bearers of rights (such as having the right to access comparable services across Canada) guaranteed by the citizens’ inclusion within the republican nation. In this framework, the principle of the equality of provinces, as opposed to asymmetrical arrangements of powers, assures the weakest political partners a level of strength that would otherwise be out of their reach.127 Furthermore, the judgments and opinions of the Supreme of Court of Canada have also shifted towards emphasizing functionality over principles. The Court is tending more towards deciding litigation concerning the division of powers by referencing the principles of efficiency and effectiveness. The principle of effectiveness is easily defined: which order of government is best able to intervene and produce the best results? The principle of efficiency justifies the active presence of the general government in the sectors that provinces have traditionally considered their own responsibility. Thus, in the eyes of the court, efficiency is most often correlated to centralism.128 The Court holds that the initial division of powers should be interpreted in a liberal manner and invokes the approach of Lord Sankey of the Judicial Committee of the Privy Council, who, in 1930 formulated a metaphor that has since inspired much of Canadian constitutional law: ‘The British North America Act planted a tree in Canada which will grow and develop within its natural limits.’ The issue is evidently to establish the criteria by which

118  François Rocher

these metaphorical ‘natural limits’ are set. Andrée Lajoie notes that the Supreme Court has legitimized and recognized the power of the general government to intervene in the areas of security, infrastructure, and control of the economic union (see as well the contribution of Lajoie in this volume).129 This civic, functional, and republican refoundation of Canadian federalism was accepted because it was in harmony with the dominant representation of the Canadian nation since the end of the Second World War. The Canadian political system, shaken by the demands of Quebec political and intellectual elites for a special status, asymmetrical arrangements, and constitutional revision, and also pressured to adapt to the changing citizenry resulting from a more diversified immigration trend, deployed a new identity that ‘proposed to replace the “ethnic” nationalism of the Fathers of Confederation [which implicitly supported the thesis of two founding nations] with a civic nationalism that was officially bilingual and multicultural’ and permitted Canadians to distinguish themselves from the American dream.130 This pan-Canadian civic nationalism, in which the principal site of representation and the exercise of power is Ottawa, corresponds to the ideational completion of the Canadian political community project. This Canadian nationalism does not limit itself to English-speaking Canadians (from whom its republican character emanates) nor does it limit itself to Canada outside of Quebec (which is often designated by the acronym ROC or rest of Canada). While the Quebec identity can fall back on the Quebec state, which is the privileged site for the exercise of its power, the identity of the rest of Canada is more diffuse and inclusive. As Alan Cairns mentioned after the failure of the Charlottetown Accord, ‘since ROC nationalism dresses itself in the guise of panCanadian nationalism, its sense of self includes Quebec. As long as this correlation continues, ROC cannot act as an independent constitutional participant and cannot extricate itself from its pan-Canadian, countrywide sense of community.’131 Moreover, because the pan-Canadian political community includes Quebec, the demands for an asymmetrical status are perceived as contributing to the deteriorating presence of the federal government and even resulting in the waning of Quebec’s attachment to Canada. It is clear that the return of the compact or covenant thesis becomes increasingly less likely as the Canadian political community consolidates itself. According to the new principles that have accompanied the refounding of Canada, such as the primacy of individual rights as

The Quebec–Canada Dynamic  119

guaranteed by the Charter and the formal equality of the provinces entrenched by the amending formula of the Constitution, the demands formulated by the ‘federalist’ political elites in Quebec are incompatible with the modern representation of the pan-Canadian civic republican nation. For Cairns, only this new type of Canadian nationalism could correspond to the new constitutional foundations of the Canadian federation.132 What remains of the normative federal political project as defined by the literature? Honestly, very little. The principles of autonomy, nonsubordination, and heterogeneity are contradictory to the managerial approach that has gradually taken over since the work of the Rowell– Sirois Commission emphasized notions of efficiency, performance, and formal equality in 1940.133 Even the normative principle of interdependence, which arises from the multiple mechanisms of federal–provincial collaboration, only seeks participation as part of the quest for efficiency. In the process of federal–provincial collaboration, it is not inevitable that the most efficient solutions come from the central government. However, the dominant conviction holds that the most efficient response to problems lies in a triple combination of provincial initiatives, interprovincial cooperation, and ‘federal’ leadership (read: Ottawa).134 In the same manner, institutional reforms that may have long-lasting effects (reform of the electoral system, the Senate, the nomination process for judges, etc.) are solely evaluated according to democratic principles (without being combined with federal principles) and by the political stability that they will buttress or undermine. The legitimation of the Canadian political regime does not rest in its conformity with federal principles, but instead in the connection between public policy outcomes and the needs expressed by citizens. In other words, from the point of view of the dominant approach in Canada, federal legitimacy is no longer essential to the stability of the Canadian political system. Of course, there remain those who cling to an idealist representation of the federation critiqued for its mythical and nostalgic character; they are subsequently ignored.135 Trudeau feared that the recognition of a special status for Quebec would never lead to its self-identification as part of the Canadian community. The non-participation of Quebec in the construction of the Canadian political community appeared to Trudeau as contradictory to federal principles. Notwithstanding his commitment to federal principles, once in power, he never illustrated the same zeal in denouncing the overlapping of jurisdictions between the two orders of government.

120  François Rocher

Contrary to Trudeau, I would argue that a political community that is imposed through the interweaving of jurisdictions is far removed from the conception of federalism in which neither of the two orders of government can claim to speak in the name of the whole citizenry and where none of the federated communities controls the ensemble of powers. Conclusion Studies on the Canadian federal system generally are not content to understand federalism itself as an object of analysis. Value judgments abound, and may even be considered to constitute the norm, while prescriptions concerning what future direction federalism must undertake for improvement are also plentiful. It goes without saying that these judgments are largely founded on the pre-existing understanding of federalism held by particular authors. It is not surprising, therefore, that the solutions offered for responding to tensions, blockages, and imbalances vary enormously from one author to the next. Suggestions generally call for a change in attitude or for institutional rearrangements that could contribute to the ‘re-federalization’ of the Canadian political system. For André Burelle, the solution is to return to the initial spirit that led to the adoption of federalism and determine a new social contract on the basis of a multinational federalism. He holds that the practice of federalism over the course of recent decades has substituted a ‘one nation’ functionalism that does not respect either provincial jurisdiction or the right to communal differences and principles of non-subordination and autonomy.136 For Alain Gagnon and Jan Erk, Canada is constructed on an ambiguity around the nature of its political community that permits it to manage differences between the partners who make up the federation. They call for a return to relationships founded on mutual confidence and good faith among partners.137 The political columnist, Alain Dubuc, following the lead of many others, calls for a greater decentralization of power.138 The political philosopher Daniel Wienstock privileges a mythical disengagement permitting the cohabitation of the two different narratives and sets of symbols within the same federal institutions.139 Guy Laforest envisions the completion of the modernization of the federal regime through the elimination of remaining imperial residues; he further deplores two missed opportunities to do so: the short period when Canada was governed by Lester

The Quebec–Canada Dynamic  121

B. Pearson, who established the Bilingualism and Biculturalism Commission, and the constitutional sagas of the Meech Lake and Charlottetown accords.140 Bakvis and Skogstad, among others, have suggested reforming the Senate and better circumscribing the mechanisms of executive federalism to improve accountability.141 This list could go on. My analysis invites us to revisit the terms on which the debates and analyses of Canadian federalism rest. The interpretive frameworks have evolved very little over time. In the case of Quebec, the dominant way of understanding the Quebec–Canada dynamic is based on the work of the Tremblay Commission that took place over a half a century ago. Similarly, the preoccupations that animate the English-language literature on Canadian federalism have their roots in the work of the Rowell–Sirois Commission, whose mandate was defined in 1937. Perhaps, it is time to undergo a small paradigmatic revolution. In working towards such a revolution, I would note that all projects of reform will end in failure if the normative federal project that underlies them is not clearly enunciated. I cannot help but think that even this prescription is far from a guarantee of success, because federal representations are but faint reflections of the spirit of federalism. Currently, these undernourished representations of federalism are conveyed by political parties and simply regurgitated by political commentators in the media. Even the research of academics and the way in which bureaucrats comprehend the problems of federalism is conditioned by a weak understanding of federalism. If, as I believe, Canada is constructed on the refusal of a normative federal project, one would have to be quite clever to discern new paths in Canadian federalism not already identified by generations of analysts. Therefore, it remains, and this is no small task, to attempt to understand the factors that precede the transformations of the Canadian political system. In doing so, we should return to a critical science that instead of repeatedly turning to notions of compromise, equilibrium, and consensus will seek to interpret the effect of consistently unequal power relations that serve as the basis of the political (and too often academic) rhetoric of legitimization. Notes   1 Richard Simeon, ‘Criteria for Choice in Federal Systems,’ Queen’s Law Journal 8/3 (1983): 131–51, and Considerations on the Design of Federations,

122  François Rocher Working Paper no. 2 (Kingston: Institute for Intergovernmental Relations, Queen’s University [IIGR], 1998), 4. See also Jennifer Smith, Federalism (Vancouver: UBC Press, 2004).   2 David J. Elkins, Beyond Sovereignty: Territory and Political Economy in the Twenty-First Century (Toronto: University of Toronto Press, 1995); Thomas O. Hueglin, Early Modern Concepts for a Later Modern World: Althusius on Community and Federalism (Waterloo: Wilfrid Laurier University Press, 1999), and ‘Federalism at the Crossroads: Old Meanings, New Significance,’ Canadian Journal of Political Science 36/3 (2003): 275–94; Dimitrios Karmis and Wayne Norman, ‘The Revival of Federalism in Normative Political Theory,’ in Karmis and Norman, eds., Theories of Federalism: A Reader (New York: Palgrave Macmillan, 2005), 3–21.   3 Maurice Lamontagne, Le fédéralisme canadien: évolution et problèmes (Quebec: Les presses de l’Université Laval, 1954); Richard Simeon and Ian Robinson, State, Society, and the Development of Canadian Federalism (Toronto: University of Toronto Press, 1990).   4 Throughout this text, I will use the term ‘general state’ or ‘general government’ in place of what most authors refer to as the ‘federal government’ or the ‘central government.’ The notion of ‘federal state’ denotes the ensemble of the orders of government that compose a state. In the same manner, I will not use the term ‘levels of government’ because it presupposes a hierarchy of governments.   5 William H. Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown, 1964), xii–xiii.   6 Hendrik Brugmans, La pensée politique du fédéralisme (Leyden: Sijthoff, 1969), 29.   7 William S. Livingston, ‘A Note on the Nature of Federalism,’ in J. Peter Meekison, ed., Canadian Federalism: Myth or Reality? (Toronto: Methuen, 1968), 27.   8 Michael J. Vile, ‘Federal Theory and the “New Federalism,”’ in Dean Jaensch, ed., The Politics of ‘New Federalism’ (Adelaide: Australasian Political Studies Association, 1977), 13–14.   9 Kenneth C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963), 10. 10 Daniel J. Elazar, Federalism and the Way to Peace (Kingston: IIGR, 1994), 21. 11 Frank Delmartino and Kris Deschouwer, ‘Les fondements du fédéralisme,’ in André Alen and Centre d’études du Fédéralisme, eds., Le fédéralisme: Approches politique, économique et juridique (Brussels: De Boeck-Wesmael, 1994), 14. All translations are ours, unless otherwise stated.

The Quebec–Canada Dynamic  123 12 Bruno Théret, ‘Du principe fédéral à une typologie des fédérations: quelques propositions,’ in Jean-François Gaudreault-Desbiens and Fabien Gélinas, eds., Le fédéralisme dans tous ses États: Gouvernance, identité et méthodologie – The States and Moods of Federalism: Governance, Identity and Methodology (Cowansville: Yvon Blais, 2005), 112. 13 Carl Friedrich, Limited Government: A Comparison (Englewood Cliffs, NJ: Prentice-Hall, 1974), 54. 14 Hendrik Brugmans, Panorama de la pensée fédéraliste (Paris: La Colombe, 1956), 136. 15 Wheare, Federal Government, 53–90. 16 Raoul Blindenbacher and Ronald L. Watts, ‘Federalism in a Changing World – A Conceptual Framework for the Conference,’ in Raoul Blindenbacher and Arnold Koller, eds., Federalism in a Changing World: Learning from Each Other, Scientific Background, Proceedings and Plenary Speeches of the International Conference on Federalism 2002 (Montreal and Kingston: McGill-Queen’s University Press, 2002), 9–10. 17 Riker, Federalism, 11. 18 Max Frenkel, Federal Theory (Canberra: Centre for Research on Federal Financial Relations, 1986), 55. 19 Brugmans, La pensée politique, 36. 20 Ibid., 51. 21 Blindenbacher and Watts, ‘Federalism in a Changing World,’ 11–12. 22 Lamontagne, Le fédéralisme canadien, 99. 23 George Carey, ‘Federalism: Historic Questions and Contemporary Meanings – A Defense of Political Processes,’ in Valerie Earle, ed., Federalism: Infinite Variety in Theory and Practice (Itasca: F.E. Peacock, 1968), 58–60. 24 Théret, ‘Du principe fédéral,’ 101. 25 Ibid., 100. 26 Ibid. 27 Brugmans, Panorama, 146. 28 Samuel LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGillQueen’s University Press, 1996), 28. 29 Daniel M. Weinstock, ‘Vers une théorie normative du fédéralisme,’ paper presented at the International Conference on Federalism, Mont-Tremblant, Oct. 1999. 30 Elazar, Federalism, 5; Frenkel, Federal Theory, 55. 31 Delmartino and Deschouwer, ‘Les fondements du fédéralisme,’ 12–13. 32 Brugmans, La pensée politique, 26. 33 The Collins Dictionary defines this term in the following manner: ‘a set of

124  François Rocher three pictures or panels, usually hinged so that the two wing panels fold over the larger central one: often used as an altarpiece.’ 34 This way of presenting federal principles more adequately reflects the complexity of the social reality that interests me than do references only to the basic principles of autonomy and participation that have been identified. See, e.g., by Burdeau (1967). 35 Delmartino and Deschouwer, ‘Les fondements,’ 25–6; Daniel J. Elazar, ‘Confederation and Federal Liberty,’ Publius 12/4 (1982): 4, and Federalism, 17. 36 Francis Delpérée and Marc Verdussen, ‘L’égalité, mesure du fédéralisme,’ in Gaudreault-Desbiens and Gélinas, Le fédéralisme, 197. 37 Théret, ‘Du principe fédéral,’ 124. 38 Henry Teune, ‘The Future of Federalism: Federalism and Political Integration,’ in Earle, Federalism, 232–3. 39 Rusen Ergec, ‘Les aspects juridiques du fédéralisme,’ in Alen et al., Le fédéralisme, 42. 40 Ibid., 42–3. 41 Frenkel, Federal Theory, 73. 42 Stéphane Rials, Destin du fédéralisme (Paris: Librairie Générale de Droit et de Jurisprudence, 1986), 10–11 and 43–4; Ergec, ‘Les aspects juridiques,’ 44–5. 43 Brugmans, Panorama, 137. 44 Frenkel, Federal Theory, 92. 45 Brugmans, La pensée politique, 39. 46 Frenkel, Federal Theory, 93. 47 Elazar, Federalism, 12. 48 Thomas O. Hueglin, ‘Legitimacy, Democracy, and Federalism,’ in Herman Bakvis and William M. Chandler, eds., Federalism and the Role of the State (Toronto: University of Toronto Press, 1987), 34. 49 Livingston, ‘Note on the Nature of Federalism,’ 138–9. 50 Jonathan Lemco, Political Stability in Federal Governments (New York: Praeger, 1991), 11–12. 51 Lamontagne, Le fédéralisme canadien, 99. 52 Riker, Federalism, 135–6. 53 Delmartino and Deschouwer, ‘Les fondements,’ 12. 54 Weinstock, ‘Vers une théorie normative,’ 6. 55 Théret, ‘Du principe fédéral,’ 128. 56 On this question see Filippo Sabetti, ‘Covenant Language in Canada: Continuity and Change in Political Discourse,’ in Daniel J. Elazar and John Kincaid, eds., The Covenant Tradition: From Federal Theology to Modern Federalism (Lanham: Lexington Books, 2000), 259–84.

The Quebec–Canada Dynamic  125 57 Hueglin, ‘Legitimacy, Democracy, and Federalism,’ 35. 58 For a representative work of this type, consult Eugénie Brouillet, La négation de la nation: L’identité culturelle québécoise et le fédéralisme canadien (Quebec: Septentrion, 2005), 379–85. See also Réjean Pelletier, ‘Constitution et fédéralisme,’ in Manon Tremblay, Réjean Pelletier, and Marcel R. Pelletier, eds., Le parlementarisme canadien, 3rd ed. (Quebec: Les presses de l’Université Laval, 2005), 37–79. 59 We will examine the political federalism developed by the Tremblay Commission later on. The Tremblay Report does take the time to describe ‘social federalism,’ which has to be inspired by society and possess a social dimension in that it is conceptually founded on the ‘Quebec model,’ which emphasizes partnership, consultation, and consensus. We will not deal with this dimension of the report, but it has been well described in Marc Chevrier, ‘La conception pluraliste et subsidiaire de l’État dans le rapport Tremblay de 1956,’ Cahiers d’histoire du Québec au XXe siècle, no. 2 (Summer 1994), 45–58. 60 Quebec (province), Rapport de la Commission royale d’enquête sur les pro­ blèmes constitutionnels (Tremblay Commission; hereafter Tremblay Report), vol. 2 (Quebec: Commission royale d’enquête sur les problèmes constitutionnels, 1956), 98. 61 Ibid., 107. 62 Almost fifty years later, Stéphane Kelly and Guy Laforest make a similar argument. See their, ‘Aux sources d’une tradition politique: Les travaux en langue française,’ in Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, eds. (French edition prepared by Stéphane Kelly and Guy Laforest), Débats sur la fondation du Canada (hereafter Débats) (Quebec: Les presses de l’Université Laval, 2004), 527. For Stéphane Kelly, there is an opposition between the Jeffersonian conception of federalism (which emphasizes the principle of the sovereignty of states) and Hamiltonian federalism (which is more centralizing and nationalist). See his, Les Fins du Canada selon Macdonald, Laurier, Mackenzie King et Trudeau (Montreal: Boréal, 2001), 18. 63 Kelly, ibid., 142–3. 64 Tremblay Report, vol. 2, 127–8. 65 Ibid., 159–60. 66 Wheare, Federal Government, 20. 67 Brouillet repeats almost word for word the argument advanced in the Tremblay Report. See her La négation de la nation, 151 and 167. 68 Tremblay Report, vol. 2, 124. 69 Ibid., 171.

126  François Rocher 70 Ibid., 332. 71 Ibid., 327–32. 72 David Kwavnick, The Tremblay Report (Toronto: McClelland and Stewart, 1973); Marc Chevrier, Le fédéralisme canadien et l’autonomie du Québec: pers­ pective historique (Quebec: Ministère des Relations internationales, 1996), 15. 73 Frank R. Scott, ‘French-Canada and Canadian Federalism,’ in A.R.M. Lower and F.R. Scott, eds., Evolving Canadian Federalism (Durham: Duke University Press, 1958), 18. 74 Ibid., 89. 75 Gil Rémillard, Le fédéralisme canadien, vol.1, La loi constitutionnelle de 1867 (Montreal: Québec Amérique, 1985), 54–5. 76 LaSelva, Moral Foundations, 39–41. 77 Certain authors, such as Jean-Charles Bonenfant, have asked whether Cartier really believed in a veritable Canadian duality that would allow French Canadians to have linguistic rights throughout Canada because, at the time, the problem of minorities was one of religion and not language. See Bonenfant, ‘Les idées politiques de George-Étienne Cartier,’ in Marcel Hamelin, ed., Les idées politiques des premiers ministres du Canada (Ottawa: Les éditions de l’Université d’Ottawa, 1969), 48–9. 78 Arthur I. Silver, The French-Canadian Idea of Confederation 1864-1900, 2nd ed. (Toronto: University of Toronto Press, 1997), 34. 79 Ajzenstat et al., Débats. 80 Vincent Di Norcia, ‘The Empire Structure of the Canadian State,’ in Stanley G. French, ed., Philosophers Look at Canadian Confederation – La confédération canadienne: qu’en pensent les philosophes? (Montreal: Canadian Philosophical Association – L’Association canadienne de philosophie, 1979), 217. 81 Silver, French-Canadian Idea, 218. 82 Gilles Bourque and Jules Duchastel (with Victor Armony), L’identité fragmentée: Nation et citoyenneté dans les débats constitutionnels canadiens, 1941–1992 (Montreal: Fides, 1996), 97. 83 Ibid., 187. 84 Chevrier, Le fédéralisme canadien, 14. 85 Jean-Jacques Bertrand, Opening Remarks, 2nd Constitutional Conference, Ottawa, 10–12 Feb. 1969 (Ottawa: Queen’s Printer, 1969), 32. 86 Quebec (province), Rééquilibrage administratif des rôles et des responsabilités: La position du Québec, Premiers’ Conference, St Andrews, 6–8 Aug. 1997, 1. 87 We can find this idea in Fernand Dumont, ‘L’étude systématique de la société globale canadienne-française,’ Recherches sociographiques 3/1–2 (1963): 277–94, and in Simon Langlois, ‘Le Québec: une société distincte à

The Quebec–Canada Dynamic  127 reconnaître et une identité collective à consolider,’ L’Action nationale 81/4 (1991). 88 Benoît Pelletier, ‘Le Conseil de la Fédération: perspectives d’avenir,’ speech delivered at the Forum of Federations, Ottawa, 14 Nov. 2005, 7–8. Available at http://www.saic.gouv.qc.ca/centre_de_presse/discours/2005/pdf/ saic_dis20051114.pdf. 89 Benoît Pelletier, ‘Le fédéralisme asymétrique: un objectif à atteindre,’ speech delivered at the Conference ‘Constructing Tomorrow’s Federalism: New Routes to Effective Governance,’ organized by the Saskatchewan Institute of Public Policy, Regina, 25 March 2004, 3–4. 90 Benoît Pelletier, ‘Le défi de l’équilibre: les processus de centralisation et de décentralisation dans l’État fédéral canadien,’ speech delivered at the International Conference ‘Les modalités de mise en œuvre de la décentralisation – étude comparée France, Belgique, Canada,’ University of Rennes, Faculty of Law and Political Science, 18 Nov. 2004, 8. 91 Jean Lesage, speech delivered at the University of Moncton, 17 May 1964, 2. 92 Stéphane Paquin, L’invention d’un mythe: le pacte entre deux peuples fondateurs (Montreal: VLB, 1999); Daniel M. Weinstock, ‘The Moral Psychology of Federalism,’ in Gaudreault-Desbiens and Gélinas, Le fédéralisme, 209– 26. 93 David M. Thomas, Whistling Past the Graveyard: Constitutional Abeyances, Quebec, and the Future of Canada (Don Mills: Oxford University Press, 1997). 94 Arthur R.M. Lower, ‘Theories of Canadian Federalism – Yesterday and Today,’ in Lower and Scott, Evolving Canadian Federalism, 16. 95 Alain-G. Gagnon and Jan Erk, ‘Legitimacy, Effectiveness, and Federalism: On the Benefits of Ambiguity,’ in Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness, and Legitimacy (Don Mills: Oxford University Press, 2002), 324; André Burelle, Le mal canadien: Essai de diagnostic et esquisse de thérapie (Montreal: Fides, 1995), 35. 96 Herman Bakvis and Grace Skogstad, ‘Canadian Federalism: Performance, Effectiveness, and Legitimacy,’ in Bakvis and Skogstad, Canadian Federalism, 4–5; Ronald L. Watts, Comparing Federal Systems, 2nd ed. (Kingston: IIGR, 1999). 97 Wheare, Federal Government, 216–17; William S. Livingston, ‘Canada, Australia and the United States: Variations on a Theme,’ in Earle, Federalism, 124–5; Simeon and Robinson, State, Society. 98 Bakvis and Skogstad, ‘Canadian Federalism,’ 4. 99 I am making reference here to the approach that seems to be dominant in the literature on the Canadian federal political regime. There exists a current within Canadian political philosophy that emphasizes the normative

128  François Rocher

dimensions of political arrangements in Canada, such as in the work of James Tully, Charles Taylor, Joseph Carens, and Wayne Norman.  Alain-G. Gagnon makes the same observation concerning works on asymmetrical federalism that insist on institutional dimensions to the detriment of normative dimensions. See his, ‘The Moral Foundations of Asymmetrical Federalism: A Normative Exploration of the Case of Quebec and Canada,’ in Alain-G. Gagnon and James Tully, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001), 321. 100 Richard Simeon, Political Science and Federalism: Seven Decades of Scholarly Engagement (Kingston: IIGR, 2002), 29, and Combining the Agendas: Federalism and Democracy (Kingston: IIGR, 2005). 101 Richard Simeon and Daniel-Patrick Conway, ‘Federalism and the Management of Conflict in Multinaltional Societies,’ in Gagnon and Tully, Multinational Democracies, 338–65. 102 Bakvis and Skogstad, ‘Canadian Federalism,’ 17. 103 When he was president of the Privy Council and minister of intergovernmental affairs, Stéphane Dion held the same point of view. See his ‘Les relations intergouvernementales au sein des fédérations: différences de contexte et principes universels,’ speech delivered at the International Conference on Federalism, Mont-Tremblant, Oct. 1999, 4. 104 Simeon and Robinson, State, Society, 126. 105 Alain-G. Gagnon and Daniel Latouche, Allaire, Bélanger, Campeau et les autres: Les Québécois s’interrogent sur leur avenir (Montreal: Québec Amérique, 1991), 49–50. 106 Stanley Alexander Saunders and Eleanor Back, The Rowell–Sirois Commission, Part II, A Criticism of the Report (Toronto: Ryerson Press, 1940), 1–2. 107 Christopher Armstrong, The Politics of Federalism: Ontario’s Relations with the Federal Government, 1867–1942 (Toronto: University of Toronto Press, 1981), 197. 108 Lamontagne, Le fédéralisme canadien, 60. 109 Canada, Report of the Royal Commission on Dominion–Provincial Relations, vol. 2 (Rowell–Sirois Commission; hereafter Rowell–Sirois Report) (Ottawa: King’s Printer, 1940), 24–8 and 40–2. 110 Stanley Alexander Saunders and Eleanor Back, The Rowell–Sirois Commission, Part I, A Summary of the Report (Toronto: Ryerson Press, 1940), 2–3. 111 Donald V. Smiley, ‘The Rowell–Sirois Report, Provincial Autonomy, and Post-War Federalism,’ in Meekison, Canadian Federalism, 67–9. 112 Donald V. Smiley, The Rowell–Sirois Report (Toronto: McClelland and Stewart, 1963), 208. 113 Rowell–Sirois Report, vol. 2, 9.

The Quebec–Canada Dynamic  129 114 Simeon and Robinson, State, Society, 86. 115 Jean-Marc Piotte, ‘La conversion de Lapalme,’ in Jean-François Léo­nard, ed., Georges-Émile Lapalme (Montreal: Les presses de l’Université du Québec, 1988), 103–4. 116 Bourque and Duchastel, L’identité fragmentée, 65. 117 Ibid., 68. 118 Canada, Rapport de la Commission royale d’enquête sur l’avancement des Arts, Lettres et Sciences au Canada 1949–1951 (Massey Commission) (Ottawa: King’s Printer, 1951), 9. 119 Jane Jenson and Susan Phillips, ‘Redesigning the Canadian Citizenship Regime: Remaking the Institution of Representation,’ in Colin Crouch, Klaus Eder, and Damian Tambini, eds., Citizenship, Markets, and the State (Oxford and New York: Oxford University Press, 2001), 76–7. 120 Wheare, Federal Government, 227. 121 Smiley, ‘Rowell–Sirois Report,’ 79–80; original emphasis. 122 See, e.g., Guy Laforest, Trudeau et la fin du rêve canadien (Quebec: Septentrion, 1992); François Rocher, ‘Le Québec et la Constitution: une valse à mille temps,’ in François Rocher, ed., Bilan québécois du fédéralisme canadien (Montreal: VLB, 1992), 20–57; Chevrier, Le fédéralisme canadien; Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997); Louis Balthazar, Quebec and the Ideal of Federalism, An occasional paper based on a seminar delivered on 25 Sept. 1997 (Montreal: McGill Institute for the Study of Canada, 1997); Raphaël Canet, ed., Nationalismes et société au Québec (Montreal: Athéna, 2003); Micheline Labelle and François Rocher, ‘Debating Citizenship in Canada: The Collision of Two Nation-Building Projects,’ in Pierre Boyer, Linda Cardinal, and David Headon, eds., From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa: University of Ottawa Press, 2004), 263–86. 123 André Burelle, Pierre Elliott Trudeau: L’intellectuel et le politique (Montreal: Fides, 2005), 459–60. 124 François Rocher and Christian Rouillard, ‘Using the Concept of Deconcentration to Overcome the Centralization/Decentralization Dichotomy: Thoughts on Recent Constitutional and Political Reform,’ in Patrick C. Fafard and Douglas M. Brown, eds., Canada: The State of the Federation 1996 (Kingston: IIGR, 1996), 99–134. 125 Canada, Commission royale d’enquête sur l’union économique et les perspectives de développement du Canada, Rapport, vol. 3 (MacDonald Commission) (Ottawa: Public Works and Services Canada, 1985), 125. 126 Canada, Commission on the Future of Health Care in Canada, Build-

130  François Rocher ing on Values: The Future of Health Care in Canada, Final Report (hereafter Romanow Commission, Romanow Report) (Ottawa, 2002), 57. Elsewhere the Romanow Report argues: ‘Canadians’ attachment to medicare is based on their understanding of it as a right of citizenship. They connect with the values that define medicare, not the particular features of the system in place in their province or territory. Canadians expect the system to guarantee them relatively similar access to a common basket of medicare services of equal quality, regardless of where they live. They expect governments, providers and caregivers to work collaboratively to maintain a system with these attributes. The fact that Canadians perceive health care as a national endeavour should not be construed as an invitation for federal intrusion into an area of primary provincial jurisdiction. Nor should it be interpreted to mean a “one-size-fits-all” approach to health care delivery’ (xviii). 127 Jennifer Smith, ‘Informal Constitutional Development: Change by Other Means,’ in Bakvis and Skogstad, Canadian Federalism, 40–58. 128 Brouillet, La négation de la nation, 320; Jean Leclair, ‘The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity,’ in Gaudreault-Desbiens and Gélinas, Le fédéralisme, 385. 129 Andrée Lajoie, ‘Garantir l’intégration des valeurs minoritaires dans le droit: une entreprise irréalisable par la voie structurelle,’ in GaudreaultDesbiens and Gélinas, Le fédéralisme, 376. 130 Burelle, Trudeau, 75. 131 Alan C. Cairns, ‘The Charlottetown Accord: Multinational Canada v. Federalism,’ in Curtis Cook, ed., Constitutional Predicament (Montreal and Kingston: McGill-Queen’s University Press, 1994), 55. 132 Ibid., 26. 133 For a critique of this managerial approach and criticism of the call to pragmatism as a rhetorical strategy to limit debate and circumscribe solutions, see Christian Rouillard and Dalie Giroux, ‘Public Administration and the Managerialist Fervour for Values and Ethics of Collective Confusion in Control Societies,’ Administrative Theory and Praxis 27/2 (2005): 330–57. 134 Richard Simeon and Martin Papillon, ‘Canada,’ in Majeed Akhtar, Ronald L. Watts, and Douglas M. Brown, eds., Distribution of Powers and Responsibilities in Federal Countries: A Global Dialogue, vol. 2 (Montreal and Kingston: McGill-Queen’s University Press, 2006), 114–15. 135 Weinstock, ‘Moral Psychology of Federalism,’ 218. 136 Burelle, Trudeau, 439–49. 137 Gagnon and Erk, ‘Legitimacy, Effectiveness, and Federalism,’ 324.

The Quebec–Canada Dynamic  131 138 Alain Dubuc, ‘We Must Break This Vicious Circle,’ Policy Options (June 2000): 8–28. 139 Weinstock, ‘Moral Psychology,’ 224–5. 140 Guy Laforest, ‘Sait-on jamais? One Never Knows,’ paper presented at the conference ‘Le Québec et le Canada au 21e siècle: Nouvelles dynamiques, nouvelles perspectives,’ IIGR, Queen’s University, Kingston, 31 Oct. and 1 Nov. 2003, 6. 141 Bakvis and Skogstad, ‘Canadian Federalism,’ 4–5.

4 Canada’s Federative Deficit jean-françois caron, guy laforest, and catherine vallières-roland

As Prime Minister Stephen Harper’s government is dropping hints about the kinds of political and maybe even constitutional changes that may shape its own approach concerning open federalism, we wish in this chapter to shed some light about the nature and force of the obstacles that the new Conservative minority team is likely to be facing during its mandate. Most of these impediments are deeply rooted in the history, institutions, and political culture of modern-day Canada. Since it is very unlikely that they are going to disappear in a sudden way, they will most probably remain as dire challenges to be faced by any government wishing to modify the federal dimensions of the Canadian system in the next decades. To undertake such tasks, we shall use and slightly adapt the conceptual framework put forward by Raoul Blindenbacher and Ronald Watts in the wake of a current program of research designed by the Forum of Federations. Blindenbacher and Watts insist on two major dimensions in their study of contemporary federal regimes: a series of structural characteristics and a list of elements pertaining to political culture. Basing our own endeavour on their approach, we hope to delineate conceptually the idea of a ‘federative deficit,’ and we shall seek to illustrate how useful it could become in attempts to ascertain the relative health of federal regimes. We shall strive to apply such an approach here to make sense of Canada’s experience with federalism. The Idea of a Federative Deficit: The Current State of Research and Situation in Canada The research initiatives sponsored by the Forum of Federations seek

Canada’s Federative Deficit  133

to reinforce democratic governance in federal countries, thus enabling governments and their leaders, academic experts, and bureaucratic practitioners to learn from one another.1 The intimate links between the forum and central governments in federal countries (starting with the example of Canada, the leading financial supporter of this network), may help to explain the hesitations of scholars – those who have formulated conceptual frameworks but also those who have undertaken case studies for the forum – with regard to the use of such a hard, critical concept such as the notion of ‘federative deficit’ in the task of synthesizing various analytical studies devoted to specific federal systems. Nevertheless, we intend to show that such a critical concept was logically clearly available to the scholars associated with the Forum of Federations. Indeed, the idea of a federative deficit flows logically from the analytical framework proposed by Blindenbacher and Watts on behalf of the forum. In the spirit propounded by this international network, federalism should be understood as follows: Federalism is essentially a system of voluntary self-rule and shared rule. This is implied in the derivation of the word ‘federal,’ which comes from the Latin foedus, meaning covenant. A covenant signifies a binding partnership among co-equals in which the parties to the covenant retain their individual identity and integrity while creating a new entity, such as a family or a body politic, that has its own identity and integrity as well.2 Within the genus of federal political systems, federations represent a particular species in which neither the federal nor the constituent units of government are constitutionally subordinate to the other, i.e. each has sovereign powers derived from the constitution rather than another level of government, each is empowered to deal directly with its citizens in the exercise of its legislative, executive and taxing powers and each is directly elected by its citizens.3

The first dimension of the conceptual framework put forward by Blindenbacher and Watts is formed by a group of six structural characteristics judged equally necessary in the making of a federal political identity:4 1 The existence of at least two levels of government acting directly, with the full benefits of legality and legitimacy, on the whole of their respective citizenries 2 A formal constitutional list of legislative and executive powers,

134  Caron, Laforest, Vallières-Roland

accompanied by the kind of distribution of fiscal sources that grants meaningful autonomy to each level of government 3 A substantial and meaningful representation of federated entities in the operations of central institutions (quite often provided through the workings of a second legislative chamber) 4 A written constitution, acting as a fundamental law, which must be unilaterally unamendable (its modification should require, beyond the consent of central authorities, the approval of a significant proportion of the federated entities, most often through their legislative assemblies or through majorities in a referendum) 5 The existence of an institutional mediator, to arbitrate the conflicts between the partners in the federal association (in most cases this institution takes the shape of a tribunal, but a similar result can be obtained by consulting the whole of the population in a referendum 6 Institutions or processes facilitating intergovernmental cooperation and coordination Blindenbacher and Watt’s conceptual framework is completed by a second dimension, constituted by a series of elements stemming from the universe and processes of political culture:5 1 A strong disposition to democratic procedures since they presume the voluntary consent of citizens in the constituent units 2 Non-centralisation as a principle expressed through multiple centres of political decision-making 3 Open political bargaining as a major feature of the way in which decisions are arrived at 4 The operations of checks and balances to avoid the concentration of political power 5 A respect for constitutionalism and the rule of law since each order of government derives its authority from the constitution One can easily observe that the list of elements pertaining to the horizon of political culture possesses a greater degree of subjectivity. We believe that the third element should be broadened to allow integration – and ultimately appropriate verification – within a federal culture of dialogue in the presence, or absence, of relations of loyalty and reciprocal trust between political partners.6 We also think that a sixth dimension should be added on the axis of political culture:

Canada’s Federative Deficit  135

6 Flexibility, or adaptability of the constitutional framework and of the institutional mechanisms This additional feature respects the purposes of the Forum of Federations and the general approach crafted by Blindenbacher and Watts. For what would be the benefits of meetings and mutual edification about democratic governance in federal countries, if all this did not eventually translate into reforms ameliorating the institutions and political life of these countries? All in all, we shall thus argue here that a slightly modified Blindenbacher-Watts scale is the appropriate tool to verify the health, or federative equilibrium, of a political system. We have known since Aristotle that there is no such thing as a perfect political system. With regard to federalism, as with regard to democracy, the ideal system does not exist. All federal countries carry a federative deficit, in most cases through a combination of deficiencies on a plurality of elements on both sides of the scale. It would be extremely worthwhile for the discipline of political science if we could arrive at a full operationalization of the Watts-Blindenbacher scale, combining quantitative and qualitative approaches. Thus, all case studies could be concluded by a judgment with regard to the existence of a low, medium, or high degree of federative deficit. We are unable to get that far at this current juncture in our work. Nevertheless, the contours of this objective will remain our guiding star for the formulation of our conclusions concerning Canada’s experience with federalism. At the start of our reflections, we hypothesize that Canada’s contemporary reality is characterized by a multidimensional federative deficit, whose traits are even more complex than everything we can find in Blindenbacher and Watt’s conceptual apparatus. Here is our own list of spheres whose analysis is relevant to understanding the nature and scope of Canada’s federative deficit. We shall therefore evaluate the impacts on Canada’s federal equilibrium of the following dimensions or phenomena: 1 Federalism in the era of globalization (multilateral forums and nego­ tiations, fragmented identities, technological revolutions) 2 The federative deficiencies in the Constitution Acts of 1867 and 1982, the two main pillars in Canada’s fundamental law 3 The institutional weaknesses of the Senate and of the mechanisms of intergovernmental cooperation

136  Caron, Laforest, Vallières-Roland

4 The emergence of a constitutional corporatism linked to the architectural network of the Canadian state 5 The deepening of the federative deficit as an unintended consequence of the collision between the Canadian and Québécois national projects 6 Various dimensions stemming from the horizon of political culture (political and bureaucratic elites, media, political behaviour, and attitudes of citizens) There is to our knowledge no sustained use of the concept federative deficit in political science literature, although many analysts and political players – particularly in Quebec – have at times employed such vocabulary. In the anglophone scholarly tradition, marching in the footsteps of Kenneth C. Wheare’s own coining of the expression ‘quasi-federalism’ to describe the Dominion of Canada after 1867, there has always existed a strong consensus about the weakness of provincial autonomy and, thus, about the overwhelming predominance of the central government in the constitutional parameters of this era.7 Indeed, the Supreme Court of Canada heavily borrowed from this rather reductive reading concerning the place of the federal principle at the time of the founding of the Dominion in 1867, in its own judgments that paved the road towards patriation of the Constitution in 1982.8 With the exception of a few scholars,9 francophone experts, in disciplines such as history, law, and political science, have on the whole accepted the validity of the interpretive claims of their anglophone colleagues.10 Early on in the new millennium two ministers of the previous Quebec government, Joseph Facal and Jean-Pierre Charbonneau, made use of the notion of a federative deficit on the occasion of major international conferences. In both cases, a reference was made to this concept in order to decry the existence of an important disequilibrium, which worked to the advantage of Canadian central authorities, in the context of globalized international politics. The following excerpts adequately summarize the reflections of Ministers Facal and Charbonneau: The phenomenon of a federative deficit is as preoccupying to us as the reality of a democratic deficit … Globalization thus poses a meaningful challenge for federal regimes. Through the conservation of the actual monopoly of the executive leadership of central governments in the conduct of international relations, we inevitably see the erosion of the federal principle as the scope of public policies discussed in the international

Canada’s Federative Deficit  137 arena keeps widening. The strength of the federal principle is reduced because federated entities lose, through the workings of globalization, an important part of their autonomy in the elaboration of public policies, without being compensated by a direct participation in international forums. Such direct participation remains the privilege of unitary states and of the central governments of federations.11

The current leader of the Quebec government, Premier Jean Charest, and his minister in charge of intergovernmental affairs, Benoît Pelletier, have chosen to use a different rhetoric than the one deployed by their predecessors associated with the sovereigntist Parti Québécois in their appreciation of the fortunes of the federal principle in Canada’s system of government. However, while they have refrained from explicitly using the strong language connected to the idea of a federative deficit, we believe that in numerous major pronouncements they have remained faithful to the spirit of such harsh vocabulary. In a conference address delivered at Charlottetown in November 2004, Premier Charest chose to invite Canadians and their leaders to renew with the spirit of federalism and to take their distances from centralizing temptations. Entitled ‘Rediscovering the Federal Spirit,’ this conference resembles the second axis on the Blindenbacher-Watts scale, the one dealing with political culture.12 In this speech Jean Charest identified five principles that should inhabit the spirit of federalism in Canada: (1) the respect of the choices, jurisdictions, and intelligence of each partner; (2) flexibility, that is, adaptability, respect of differences, and asymmetry; (3) the rule of law but also the capacity to change rules if they do not correspond anymore to the will of participants; (4) political as well as fiscal equilibrium, ‘for there can be no long-term federal equilibrium if one member finds itself in a situation which transforms detrimentally the nature of the relationship between the levels of government’; and finally, (5) the principle of cooperation, becoming even more inevitable as a result of the requirements of interdependence characterizing contemporary politics. Whereas Premier Charest’s key speech to the conference mostly focused on aspects of political culture, insisting firmly but respectfully that the central government is not the sole guardian of the common good in a federal regime, most of Minister Pelletier’s addresses since 2003 have been devoted to penetrating analyses on the first axis of the Blindenbacher-Watts scale, dealing with structural characteristics. The crucial piece from this perspective is one pronounced on a few occa-

138  Caron, Laforest, Vallières-Roland

sions by Pelletier in the spring of 2004, while travelling in western Canadian cities. He suggested that a federal regime should respect four structural requirements: (1) the establishment of an equilibrium in the sharing and interpretation of legislative powers between the two levels of government; (2) the ability of participants to obtain sufficient fiscal resources to assume their responsibilities fully and adequately; (3) the capacity of provinces to express their views in common central institutions; and finally, (4) the setting up of efficient mechanisms to facilitate intergovernmental cooperation in fields where coordination is required. Benoît Pelletier arrived at the conclusion that the current Canadian system does not measure up to any of these structural requirements. But rather than speaking about the existence of a federative deficit, he preferred to call for the urgent revitalizing of Canadian federalism. We shall argue here that the road to such revitalizing is paved with more obstacles than is suggested in the public addresses of these two Quebec governmental leaders. However, we do recognize that their common analytical framework is very similar to the approach developed through the Blindenbacher-Watts scale, and is thus quite relevant for modern-day political science. The Dimensions of Canada’s Federative Deficit Federalism in the Era of Globalization Among all of the factors that could possibly affect the internal equilibrium of any federation, globalization is probably the one whose consequences can hardly be analysed and described in an exhaustive manner. The complexity of the phenomenon and the corresponding inability of scholars to arrive at a common definition help to explain the quasi-absence of systematic comparative work exploring the connection between globalization and federalism.13 Some pioneering studies do exist, and we shall start with a few of the reflections they have proposed to the academic community. Globalization, as seen from the angle of new information and communication technologies, can, for instance, impinge directly on the two first dimensions of the structural axis of the Blindenbacher-Watts scale. Acting to modify the primary notion of territoriality and thus putting into question the existence of the borders that play a central role in the identification of political communities within federal systems, these new technologies diminish the capacity of both levels of government

Canada’s Federative Deficit  139

to deal directly with their respective citizenries. Furthermore, they can create some confusion with regard to the distribution of legislative and executive powers, thus enabling the central government to intrude on provincial jurisdictions.14 In the Canadian experience these phenomena are best shown at work by the role played by central authorities in the development of e-government and in the fostering of the Social Union Framework Agreement of 1999.15 According to Earl Fry, the current acceleration of worldwide and regional economic integration, which is a constitutive aspect of globalization, has stimulated the participation of federated entities in the international arena.16 While this phenomenon seems to be a rather positive trend, it has created tensions between Canada’s central authorities and successive Quebec governments. Although some of these struggles may at times seem petty, a very important issue is at stake, as we can ascertain whether or not partners in the political association are respecting one of the first principles of federalism, postulating the sharing of sovereignty between all levels of government in the community.17 Since the early 1960s two major visions have been colliding on this matter. Ottawa has stated its allegiance to the doctrine of the indivisibility of the Crown, from which two consequences flow: (1) jurisdiction over foreign relations belongs exclusively to the central authorities, and (2) Canada must speak with a single voice in international affairs.18 Conversely, Quebec has favoured a second thesis, suggesting that Canada operates within the parameters of a divisible Crown. This doctrine owes a lot to the jurisprudence and constitutional principles expounded over the years by the Judicial Committee of the Privy Council (JCPC) in Great Britain, at the apex of our judiciary system until the abolition of Canadian appeals to it in 1949.19 The JCPC gave Quebec, and other provinces as well, a number of key arguments enabling them to claim the right to exercise their autonomy beyond their borders.20 Changes in the partisan anchoring of governments in both capitals over the years have not altered the nature of this struggle between first principles. Beyond its structural dimension related to the issue of sovereignty, this conflict is endowed with reverberations in the sphere of political culture (open political bargaining and the need for relationships based on reciprocal loyalty). Frequently over the years, Ottawa has demanded that Quebec governments obtain the imprimatur of central authorities prior to any signature of an international agreement with a foreign country. This kind of juridical instruments, fixing precise parameters for the foreign activities of provinces or member-states, increases the ability of central

140  Caron, Laforest, Vallières-Roland

authorities to exercise a substantial form of control, thereby widening the federative deficit.21 Relationships founded on trust and on the idea of a culture of dialogue can be detrimentally affected by an array of strategies. Quebec officials have been regularly asked to coordinate their journeys abroad under the stewardship of Canadian embassies, and it has happened, particularly when the Parti Québécois has held power, that the Quebec premier was denied access to foreign leaders (as occurred when Lucien Bouchard was prevented from seeing President Zedillo during his visit to Mexico in 1999). Globalization has also led to the emergence of international economic and juridical regimes that are more constraining than ever for all states, be they sovereign or not.22 According to Daniel Kelemen, this trend has had centralizing consequences in the dynamics of federal regimes, because only central governments formally participate in international negotiations, contracting engagements for the respect of which they are held responsible by other states in the application of treaties.23 Kelemen’s analysis is keenly relevant for Canada in the sphere of international trade and commerce. Section 91(2) of the 1867 federal constitution (the British North America Act, now called the Constitution Act, 1867) allocated this competence to the central parliament. Ivan Bernier has argued that the rule of federal paramountcy has further allowed central intrusions in provincial powers whenever such intrusions are deemed necessary for the exercise of Ottawa’s jurisdiction over international trade.24 Although this adds up to a reinforcement of the federative deficit, matters are rendered more complex by the dualistic nature of the Canadian political system in foreign affairs. The capacity of the federal government to negotiate and sign international treaties that create obligations (Section 132 of the 1867 Constitution)25 does not translate, as François Leduc has recently explained, into an additional capacity to implement these engagements when they are contracted in fields of exclusive provincial jurisdiction.26 Each and every province that is affected must autonomously commit itself in a formal juridical instrument for these engagements to be implemented on Canadian territory. This obligation works as an incentive that encourages the central authorities to maintain a climate, a political culture characterized by habits of open political bargaining and harmonious collaboration with provinces through various mechanisms of intergovernmental cooperation and coordination. However, this does not amount to an appropriate compensation for what remains for the provinces a clear loss of

Canada’s Federative Deficit  141

executive authority in their fields of exclusive jurisdiction, all the more so since coordinating mechanisms in Canada fail to be constitutionally or institutionally anchored in any meaningful sense, resting more on the good will of central authorities than on clear rules providing for the formal participation of the provinces.27 Much more could be said on the impact of globalization. We wish to conclude this subsection with some notes on the role of globalizing forces in the dynamics of Quebec’s nationalism and identity. Whereas anglophone Canadians appear to feel more threatened by North American cultural and economic integration, people in Quebec and their political leaders seem to consider that these processes present them with an opportunity to affirm their collective difference and to diminish the economic dependence of Quebec vis-à-vis the Canadian internal market. Many observers have thus remarked that integrative trends have worked to consolidate Quebec nationalism (a similar logic operates with regard to the independence movement), thereby creating more obstacles in the drive to maintain a climate of dialogue and open political bargaining.28 We shall pursue this line of argument in a further subsection exploring the consequences of the struggles between the national projects of Canada and Quebec. Federative Deficiencies in the Constitution Acts of 1867 and 1982 In French, as well as in English, we are currently witnessing in our intellectual life an important interpretive renewal concerning the meaning and the role of the federal principle in the formative years of the Dominion of Canada. This renewal takes the shape of a better understanding of the tension at work between, on the one side, the principle of substantial provincial autonomy, and on the other side, the idea of a strong subordination between governmental levels that existed in the triple hierarchical structure that linked Great Britain to the Dominion of Canada and further down the scale to provinces;29 it is marked also by the rediscovery of the fact that the aspiration towards autonomy was far from being a monopoly of French Canadians from Quebec, that it fed as well the political behaviour of the reformist movement in Canada West (Ontario) and in the Maritime colonies;30 it is further characterized by a legal anchoring (Section 94 of the 1867 Constitution) of the idea that Quebec should benefit from a significant form of asymmetrical treatment,31 and finally, by a reinterpretation of the doctrine of responsible government as providing a basis for the existence of a relationship of

142  Caron, Laforest, Vallières-Roland

coordinate sovereignty between Dominion and provincial authorities under the auspices of the British Crown.32 Over the long haul, this interpretive renewal could lead to a significant transformation of our political culture, changing mentalities sufficiently to improve the federative balance in our political system through improvements in the dynamics of non-centralization and open political bargaining following the language of the Blindenbacher-Watts scale, breathing fresh air into the area of greater reciprocal respect and flexibility, to employ the vocabulary suggested by Premier Jean Charest. For notwithstanding its thought-provoking importance, the current renewal has not dislodged the historiographical federative deficit still manifesting itself through the hegemony of Wheare’s quasi-federal approach. We shall now turn to the foundations of this dominant thesis with regard to the 1867 Constitution, before turning our attention to the consequences, in this context, of the 1981–82 reforms.



The Existence of a Federative Deficit in the 1867 Constitutional Law



The 1867 Constitution fully respects the first two criteria that can be found on the structural axis of the Blindenbacher-Watts scale: it sets up the legal existence of two levels of government having direct access on their respective citizenries while granting to each level substantial legislative autonomy through a formal distribution of powers (mostly through Sections 91 to 95). The logic presiding over this distribution is as follows: subjects that are of a general nature are allocated to the central parliament, whereas subjects that are of a local nature are given to the provincial sphere. In accordance with the spirit of this approach, but clearly deviating from American practice, residuary powers over general matters belong to the Dominion parliament, Section 91(29), whereas residuary powers over local matters fall in the category of provincial jurisdictions, Section 92(16). The first major source justifying the existence of an important federative deficit in the 1867 Constitution comes from the preamble of Section 91, which states that the Canadian central parliament will have the general authority to make laws preserving ‘Peace, Order and Good Government.’ This global interpretive doctrine induces a strong disequilibrium in the sharing and interpretation of legislative powers. Many other quasi-federal or quasi-unitary dimensions characterize the legal system founded in 1867: the powers of reservation and disallowance of provincial laws, granted to Crown representatives in the

Canada’s Federative Deficit  143

provincial and Dominion capitals (Sections 55, 56, and 90); these prerogatives worked clearly in contradiction with the principle of shared sovereignty at the heart of any federal logic, while representing an imperial mechanics of coordination fully at odds with the cooperative institutions or processes discussed in the last dimension of Blindenbacher and Watts’s structural axis. It needs to be mentioned that the Dominion of Canada was itself located in a similar chain of subordination vis-àvis imperial authorities, until the completion of this aspect of Canada’s adventure of quiet decolonization through the Statute of Westminster in 1931. Current legal doctrine considers these powers of reservation and disallowance as ‘dormant,’ at least conventionally. However, they have not been expressly abrogated. The 1867 Constitution also had a peculiar provision, called the declaratory power, Section 92(10.c), which allowed the central parliament to proclaim works of a local nature falling in the basket of a provincial jurisdiction to be to the advantage of all Canada, or of a plurality of its constituent parts. Evidently, this introduces a strong federative deficit with regard to the sharing of legislative powers. In addition, the Dominion parliament could (through use of Section 93) adopt remedial laws to protect the educational rights of minority religious communities in all provinces. In the sphere of foreign relations or international affairs, the Dominion parliament was proclaimed competent to fulfil the obligations of Canada flowing from treaties contracted between the British Empire and foreign countries. As we saw in the previous subsection, the Statute of Westminster in 1931 gave full sovereignty to Canadian central authorities in this field of jurisdiction. The image of a triple hierarchical structure within the Empire de­scribed equally appropriately the organization of the courts, with ulti­mate arbitration in the hands of the British Judicial Committee of the Privy Council (JCPC) until 1949. Sections 91 to 96 of the 1867 Constitution provided for an extraordinary centralization of judiciary authority, vesting nominating powers to all superior courts and all appellate courts in all provinces in the hands of the central government. These sections also lay the groundwork for the establishment of a general court of appeals, finally created in 1875 as the Supreme Court of Canada. Needless to say, the provinces do not participate in the nominating process of Supreme Court justices. Notwithstanding their universally admired competence and personal integrity over the years, Supreme Court justices have failed, ever since their institution became Canada’s tribunal of last resort in 1949, to meet the high standards of objective

144  Caron, Laforest, Vallières-Roland

neutrality required by the Blindenbacher-Watts scale.33 The problem does not reside solely in the fact that high judges owe their nominations to the arbitrary will of executive authorities, or even in the reality of their belonging to the social networks of political and bureaucratic elites in the central capital. An equally important deficiency results from the existence of an organic liaison between the Supreme Court of Canada, on the one side, and the central government and Parliament, on the other. For instance, the current (at the time of this writing) Chief Justice of the Supreme Court, Madame Beverley Mclachlin, can act as a substitute for the governor general, first in her executive role representing Canada with foreign ambassadors, and then in her legislative role with regard to the ratification of laws passed by Parliament. In the area of constitutional arbitration, we conclude that Canada since 1867 has suffered from a deep and lasting federative deficit. Such a deficit has been multidimensional ever since the emergence of the Canadian federation and we do not pretend to identify all these dimensions in our chapter. We have altogether neglected the matter of the fiscal supremacy of the central government. Readers of this book will find a nuanced treatment of this issue in the chapters by Alain Noël and Michel Seymour.



The Existence of a Federative Deficit in the Constitution Act, 1982



In Canadian political science, in English as well as in French, there is a large consensus to the effect that the 1982 Constitution has negatively affected the place of the federal principle in our political and legal spheres. As Dimitrios Karmis argues (in this volume), this reform was philosophically based on a universalistic approach inimical to plurinationalism. Moreover, much of what we will say here is further developed by José Woehrling in yet another chapter of this volume. To illustrate the standard reading about the relationship between the 1982 Constitution and the federal principle, we shall start with two quotations followed by some additional examples: The government by judges, through a ‘national’ Charter enjoying paramountcy over any provincial Charter allows side-tracking the collective rights of various units of the federation and further homogenizing the country by invoking the principles of equal and intangible individual rights; furthermore, government by the ‘Canadian people’ enables central authorities to bypass the constitution and to exercise the right to

Canada’s Federative Deficit  145 interfere in fields of provincial jurisdiction, seeking the prevalence of the superior interest of ‘the’ nation and the preservation of equal opportunity for citizens belonging to the same country.34 The language of this Charter, general and abstract, is of such a nature that it grants Canadian tribunals an enormous interpretive power, elevating the Supreme Court and other tribunals to the ranks of Co-Legislator and Co-Constituent. It is fair to estimate that thanks to this implicit delegation of legislative authority, Canada’s Supreme Court has become one of the most powerful judiciary institutions in the Western world. For, while inheriting this new mission, the Court goes on with its other tasks, hearing appeals in civil, criminal, administrative, and intergovernmental matters.35

The very first section of the 1982 Canadian Charter of Rights and Freedoms proclaims the existence of reasonable limits to rights ‘in a free and democratic society.’ Nothing in this formulation can be taken to resemble any kind of imperative duty for judges to take into consideration the federal nature of the country. In light of the arguably subordinate but nevertheless very real presence of the federal principle in the 1867 Constitution, it should not come as a surprise to note that judges regularly integrate this principle in their reflections. This being said, it remains true that the Charter starts with a disposition premised on a vision of the Canadian political community as singularly undifferentiated. Abstract monism and unlimited universalism characterize the first section of the Charter. An expression such as ‘reasonable limits’ should not have the same meaning in a bilingual, plurinational, and multicultural federation such as Canada as it would in a unitary and unilingual state. A defederalizing logic inspires the beginning of the Charter, and it carries consequences furthering a similar spirit in the broader political culture of the land. Studies by Peter Russell, Alan Cairns, and many of their followers have clearly established that the ‘nationalizing’ power of the Charter has led to a standardization of mentalities across the range of the Canadian population, thus increasing the legitimacy of the central government’s forays in the fields of exclusive provincial jurisdiction.36 Identifying Canada in the Charter as a ‘free and democratic society’ rather than as a ‘free and democratic federation’ cannot be reduced to a minor semantic difference. Such language has contributed over the past quarter of a century to a major transformation of Canadian political culture, weakening the principle of co-sovereignty between partners in the federal dialogue, while affecting, although more indirectly, the interpretive dynamics of the distribution of legislative powers.

146  Caron, Laforest, Vallières-Roland

On its structural axis, the Blindenbacher-Watts scale requires that in addition to the consent of central authorities, a substantial proportion of federated entities should also give their approval to initiate the process of constitutional amendment.37 With regard to changes occurring after 1982, this criterion is being fully respected in Canada. Strictly speaking, however, considering the importance of the 1982 reform for the overall federal equilibrium of the country, it must be added that this major change has omitted a key element in Blindenbacher and Watts’ prescriptions. The aspect we are pointing to here is not the well-known lack of consent of Quebec’s legislative and executive authorities, which remains unremedied to this day. Rather, we call attention to the fact that none of the legislative assemblies of the other nine provinces has ever given its approval to the reform through a formal vote.38 Astonishingly, in light of the magnitude of the reform, nowhere was a parliamentary debate ever deemed necessary. Executive assent at the top level of the provincial states was considered sufficient. We see in this phenomenon a full-blown aggravation of the federative deficit, as is demonstrated by the following passage written by José Woehrling: ‘The existence of a territorial political autonomy protects territorially concentrated minorities by granting them the political control of a federated entity; thus, federalism enables minorities to exercise the sort of autonomy founded on the decision-making principle of majoritarianism. Inasmuch as the protection of rights through a constitutional instrument is an anti-majoritarian device, it acts as a limit to the political autonomy of minorities benefiting from the existence of one or of many such territorial entities. The minority that controls such an entity sees its own political power diminished to the advantage of its own minorities and of its own individual members.’39 Woehrling’s argument evidently bears on Quebec’s situation within Canada. What is at stake here is the capacity of both levels of government to relate directly to all their citizens. Matters are made more complex by the fact that Quebec’s anglophone minority is part of the overall Canadian anglophone majority. Thus, a Canadian mechanism to protect rights can be used to insure the triumph – at the expense of Quebec’s political and legal autonomy – of the majority language group in the country at large. Interestingly, a similar line of analysis can be found in seminal studies by Jeremy Webber and Will Kymlicka.40 The whole gamut of questions arising from the clash between the national projects of Canada and Quebec involves such developments, as we shall see later on in this chapter.

Canada’s Federative Deficit  147

Our analytical journey through the 1867 and 1982 constitutions has enabled us to identify aspects of Canada’s federative deficit belonging to four structural dimensions: (1) the co-sovereign capacity of governments to act on behalf of their citizens; (2) the sharing of powers and the distribution of fiscal resources; (3) the matters of constitutional amendment, and (4) the arbitration of conflicts between federated partners. In the next subsection, dealing with institutions, we shall incorporate reflections on the last two structural aspects on the Blindenbacher-Watts scale, that is, the representation of federated entities in the operations of the central state and the matter of intergovernmental coordination. Institutional Perspectives At this early stage in the twenty-first century, many factors coalesce to demand swift improvements in federal processes and institutions with regard to intergovernmental cooperation and coordination: greater interdependence because of the widening entanglement of legislative responsibilities (internal pressures), technological changes, and all phenomena linked to greater supranational changes (external pressures). We shall concern ourselves here with only two aspects of Canada’s international horizon in this complex area: horizontal mechanisms of intergovernmental coordination through the Council of the Federation, and Canada’s main body of vertical coordination, the First Ministers Conference. Founded in the wake of an initiative by the Quebec government late in 2003, the Council of the Federation’s primary objective is to modernize what was formerly known as the Annual Conference of Provincial Premiers, so as to insure greater coordination between partners.41 Such modernization is sought through the reciprocal sharing of expertise and thus the fostering of a more closely integrated association, through the development of a common understanding of Canadian intergovernmental relations, and finally through the establishment of a better dialogue with the central government in all fields and in all priority issues. The short life to date of the council has been marked by a number of innovations: the establishment of a permanent and autonomous administrative secretariat, the provision for two annual meetings rather than one as was before customary, the clear acceptance of the fact that the three territories have a place at the interprovincial table, and, finally, the endorsement of the principle of provincial equality in a representative institution. The council’s new approach gave impressive results

148  Caron, Laforest, Vallières-Roland

early on with the signing of the federal-provincial-territorial agreement on health care in September 2004. Today, the situation appears less clear. Despite a marked change in tone, Stephen Harper’s minority Conservative government has proven to be as tempted as its Liberal predecessors by the practice of unilateralism on the issue of transfers to the provinces. Although deep disagreements between provinces were part of the explanation, it remains true that real progress on the fiscal imbalance front in 2007 came through the federal budget without much formal consultation of constituent units. With regard to intergovernmental coordination, we believe that a key task for those who wish to improve Canada’s federative balance has to do with the streamlining of the institution at the apex of executive federalism, that is, the First Ministers Conference (FMC). Martin Papillon and Richard Simeon have recently published the most complete and up-to-date study detailing the problems associated with the functioning of the First Ministers Conference as an organ of coordination.42 These conferences are organized in an ad hoc fashion, devoid of any kind of regular temporality. Rather than aiming at the management of interdependence, the conferences are more often than not motivated by immediate political goals. Lacking clearly defined administrative procedures, they also operate without mutually agreed upon decision-making mechanisms. They also tend to be poorly prepared and, correspondingly, in no way more efficient with regard to follow-up practices. Papillon and Simeon also lament the absence of clearly defined relations, first with other intergovernmental bodies, and then also with other federal and provincial legislative assemblies. Operating without the slightest measure of democratic transparence, First Ministers Conferences are concluded by the signing of documents that have no real legal or constitutional status and are thereby seen as binding only in the most imprecise ways. Summing up their analysis through what we will call a combination of both axes on the Blindenbacher-Watts scale, Papillon and Simeon argue that the ad hoc approaches embodied in the manner in which FMCs operate contribute to a worrisome weakness in the relationships of trust and loyalty between all key actors in Canadian federalism. In an attempt to go further than Papillon and Simeon, Laforest and Montigny have identified the imperial nature of the origins of many unilateral practices still currently at work in Canadian First Ministers Conferences. Laforest and Montigny find that these enable the prime minister in Ottawa, in his capacity as executive leader of the central

Canada’s Federative Deficit  149

government, to decide in a completely discretionary way whether such a conference should even take place or not, and to single-handedly dictate the agenda and the proceedings throughout the deliberations.43 This leads us to conclude that, as an instrument of summit coordination in Canadian federalism, the First Ministers Conference is totally at odds with all dimensions of interest to the Blindenbacher-Watts scale. Nothing can be more foreign to the doctrine, the institutional structures, and the political culture of federalism than the present Canadian way of dealing with vertical intergovernmental coordination.44 From the perspective of institutions, Canada’s federative deficit goes far beyond the sphere of executive relational governance. As we saw at the beginning of this chapter, the respect of an important structural dimension on our chosen scale requires a real and substantial representation of the federated entities in the operations of central institutions. Early on in the life of the Dominion of Canada, the Senate was defined at least partly in conformity with a certain understanding of the spirit of federalism. An illustration of this can be seen in the procurement of equivalent representation for the four major regions of the country (Quebec, Ontario, the Western provinces, and the Atlantic provinces). However, two supplementary aspects have combined to reduce the functional rationality of the Senate to the vigilant analysis of central legislation and to the exercise of some control over executive and legislative central authority. The first such aspect has to do with the nomination of Senators – in theory a prerogative of the Crown and of its officers, resting conventionally on the shoulders of the prime minister in Ottawa – while the second aspect pertains to the specific evolution of a system of government in which the tasks of interprovincial and cross-regional dialogue have been concentrated within the ranks of the central cabinet and within the institutions of executive federalism. The goal of representing federated entities, not fully met at the beginning but at least institutionally imaginable, has completely disappeared from the horizon. Moreover, changing the Senate has become the prototypical cemetery of reformist designs in Canadian politics. Among other matters, Stephen Harper’s minority government will be remembered for failing to carry through Pariliament’s own efforts at Senate reform, and for having done so without systematic provincial consultation. Recapitulating what we hope to have accomplished in this subsection, we note that in Canada the populations of federated entities are represented in central institutions, but their governments are not. This

150  Caron, Laforest, Vallières-Roland

problem is amplified by current trends affecting the global architecture of the Canadian state.



The Architecture of the Network of the Canadian State



A major consequence of the hegemony of executive federalism in the business of intergovernmental relations in Canada has been the mostly private character of constitutional discussions and the absence of any meaningful citizen participation for most of the twentieth century.45 In the past two decades, culminating with the saga of the Meech Lake Accord, this lack of transparency has been steadily criticized, and many sources have called for greater popular input in the conduct of intergovernmental relations.46 This trend goes much beyond the desire to render those processes more open and more democratic. As Alan Cairns has coherently argued in his pioneering studies, the 1982 Canadian Charter of Rights and Freedoms has empowered a number of groups –indigenous peoples, visible minorities, women, and linguistic minorities – by granting them a legal recognition of their status.47 This production of ‘constitutional identities’ has led to the contestation of the idea that Canada’s constitutional order only belongs to a select group of political leaders. Such a perspective did much to feed the well-known attack against the Meech Lake Accord by civil society groups for having been elaborated behind closed doors by ‘eleven non-handicapped white men.’48 This empowering or ‘constitutionalization of identities’ has notably had substantial effects on Canada’s indigenous peoples. Through the open-ended formulation of Section 35 of the 1982 Constitution, the category known as ‘indigenous peoples’ has become much more inclusive. This important expansion has greatly diversified this social group. The overall logic is clear: pluralization, diversification, increasing complexity. Not only must newly recognized minority groups and communities sit at the constitutional table but, in the current environment, with regard to indigenous peoples, this must include an impressive diversity of voices: the established organizational voices of status Indians, Inuit, and Metis, but also the voices of women, of modernizers and traditionalists, of people living in cities, and of people living in isolated communities.49 Until recently, such an organization as the Assembly of First Nations could act as a legitimate voice, or as a mediator, on behalf of indigenous peoples in the framework of constitutional negotiations. However, recent developments such as the granting of governmental

Canada’s Federative Deficit  151

autonomy to the Nisga’a in British Columbia and the process known as the common approach (l’Approche commune) with some indigenous peoples in Quebec, not to say the evolution of jurisprudence, are quite likely to act as harbingers of change in this matter. It is quite likely that these indigenous nations, and probably many others, will ask not only for recognition but also for a more direct participation in constitutional negotiations of importance to their status and to their future.50 This phenomenon leads to a couple of consequences: the multiplication of voices can have detrimental effects on the capacity of indigenous peoples to act effectively, and moreover this proliferation provokes the sharp overload of constitutional discussions. The new constitutionalization of minority group identities has changed the equilibrium in the relationship between the central and provincial governments. In many areas of public policy, Ottawa tends more and more to isolate the provinces and to ignore their input. This is clearly the case in the formulation of foreign policy, an area where the central government circumvents the provinces while working to incorporate the views of a wide array of groups from civil society. The political culture of vibrant dialogue between governmental actors that Blindenbacher and Watts had in mind when they highlighted the importance of open political bargaining is thus significantly weakened. Speaking more generally, the political system of executive federalism and of intergovernmental negotiations seems to be gradually displaced by the establishment of more direct relations between the central state, on the one side, and Canadian civil society (social movements, constitutionalized minorities, cities, citizens), on the other.51 Current negotiations concerning agriculture provide a good example of such a trend. Conducted using the practices of executive federalism throughout the 1980s, these negotiations have undergone significant changes in the latter part of the Uruguay Round. Canada’s position in Seattle had followed various consultations with groups from civil society. At that stage, the central government used the input of a number of advisory subgroups on international trade; Quebec’s Union des Producteurs Agricoles was involved in one of these groups. This whole approach led to a downgrading of the role of the provinces as partners in the state’s decision-making processes. As we saw in an earlier subsection, such supranational negotiations abound in the era of globalization, and they often take place in areas falling squarely in the category of provincial jurisdictions. In the case of agriculture, this jurisdiction is shared between both levels of government.

152  Caron, Laforest, Vallières-Roland

The architecture of the Canadian state network is thus rendered more complex by the combined effects of globalization and of the constitutional pluralization associated with the Charter of Rights and Freedoms. As part of this joint phenomenon, Canadian cities have emerged to seek greater legitimacy and enhanced status. Basing their arguments on the idea of subsidiarity (a key principle in the European Union, suggesting that political decisions should remain at the level nearest to citizens unless justice and efficiency require otherwise), Canadian cities have been arguing that the global environment is accompanied by economic and social pressures necessitating a rearrangement of their relationships with Ottawa and with the provinces.52 Big cities want more power, more money, and direct access to the federal government, despite their constitutional dependence on the provinces. The addition of a large variety of players around the constitutional and intergovernmental table multiplies the number of questions likely to emerge in such debates. Direct relationships between Ottawa and the provinces become one such subject among many others. In the hey-day of executive federalism, the provinces played a huge role in the crafting of intergovernmental compromises. Our era has witnessed the withering away of such practices. In post-1982 Canada, the triumph of constitutional corporatism has dramatically diminished the adaptive, transformative capacities of the fundamental law undergirding our political system. This affects the last dimension on the cultural side of the Blindenbacher-Watts scale, the one that we have added to this conceptual tool-kit.



The Deepening of the Federative Deficit as an Unintended Consequence of the Collision between the National Projects of Canada and Quebec



In some of the most influential studies of contemporary political science, Michael Keating has proposed a conceptual framework to account for the political dynamics of countries such as Belgium, Spain, Great Britain, and Canada, where attempts to construct distinct and autonomous national communities conflict with one another. Non-sovereign entities and independent nation-states are the key players in such struggles. In Michael Keating’s political sociology, the concept of ‘national project’ integrates the various institutions and processes that enable a nation, a state, or a regional society to formulate policies that will be adapted to a complex and interdependent world. Institutions of self-government

Canada’s Federative Deficit  153

are crucial in such an endeavour, for they provide an arena for public debates, thus simultaneously granting legitimacy and promoting the interests of such a community within and beyond the borders of the state.53 Keating goes on to argue that national projects of such a nature will attempt to achieve concrete results in all areas of public policy, from economics to culture, from social affairs to matters related to political institutions. More recently, Keating has enriched the vocabulary of his political sociology by introducing two new notions, plurinationalism and post-sovereignty. The first one describes contexts where many national identities coexist (not only through separate and parallel ways but also by intermeshing in the minds of citizens and in the legal and institutional realities of territorial units within the state), whereas the second one signifies the end of the claim made by independent states to a territorial monopoly with regard to authority and legitimacy.54 Keating believes that the rise of non-sovereign and minority nationalisms, coupled with a renewed interest in cultural pluralism and multiple identities, justifies the use of such a concept as post-sovereignty. All in all, we think that Keating’s approach will help us to provide a better understanding of Canada’s federative deficit. Ever since the emergence of the federal Dominion in 1867, the central state has always been closely associated to the promotion of a Canadian national project.55 Through its deep involvement in economic and social affairs, the state functions as an identity marker to differentiate Canada from the United States. Traditionally, this has gone hand in hand with an abiding respect for public order, allowing the central state to legislate so as to foster peace, order, and good government. Through various cycles of ‘national policies,’ the Canadian state has worked to reinforce the East-West axis in a North American environment where the natural flows tend to go North-South. From 1867 all the way to the 1982 constitutional reform, another cherished objective of the central state has been the protection of minority communities across the land. While all of this was going on in Canada, the accelerated modernization of Quebec society in the second half of the twentieth century was accomplished under the leadership of a dynamic federated state, enjoying substantial autonomy and acting as the vanguard of a complete and diversified institutional network. Without benefiting from the prerogatives of complete sovereignty, this state has played a key role in the promotion of a modern Quebec national project. According to most political science textbooks, the collision between the national projects of Canada and

154  Caron, Laforest, Vallières-Roland

Quebec has been the most fundamental dimension of political life in this country since 1945.56 The formidable pressures applied on Canadian apparatuses by Quebec society and by sovereigntist forces since the early 1960s have strongly contributed to the transformation of Canadian national identity and to a peculiar evolution of the central state. An enhancement of the federative deficit has been a consequence. As a rule, the political science literature generally applauds the merits of federalism (shared sovereignty, institutional flexibility, open-ended dialogues), in large part because the institutions flowing from this doctrine are seen as conducive to the successful accommodation of diversity. However, federalism should not be taken as a panacea.57 The example of Canada and Quebec shows that the exacerbation of a conflict between two national projects, although occurring well within the parameters of civility linked to liberal democracy, can be reciprocally related to the widening of the federative deficit. Facing Quebec, the Canadian national project and the central state react to a sense of threat. Be they real or simply perceived as such, these threats become factors that encourage the central state to use its advantages in the sharing of fiscal resources to relate with citizens more directly and more systematically than the Quebec state, in order to consolidate the Canadian national project all over the territory, even if this requires not complying with the constitutional division of powers. These trends in Canadian nation-building reinforce in Quebec the perception that the country is on a clear path towards becoming a unitary state rather than a federation.58 The logic at work here is one of Manichean polarization. Feelings of trust and reciprocal loyalty tend to disappear in conversations between the democratically legitimate leaders of these respective national projects. In other words, this looks like a process of systemic paralysis marked by a negative rhetoric: disparaging remarks about the other national project become the customary way to promote one’s own. Modest but real progress has been made when Stephen Harper led the House of Commons to adopt late in November 2006 a resolution recognizing that ‘Québécois’ form a nation within a united Canada.



Aspects Related to Political Culture



The sort of culture of dialogue conducive to cooperation and coordination in a federal regime emerges with far greater ease when leaders of both levels of government agree on the key issues of the day. More often than not, such a consensus has been absent from Canadian poli-

Canada’s Federative Deficit  155

tics since the Quiet Revolution in Quebec, and divergent views about the nature of the political community are the root cause of this situation. In Quebec, a dominant perspective sees Canadian federalism as belonging to a multinational framework, whereas elsewhere in the country, a territorial perspective – linked to the premise that Canada forms a single nation – appears to be hegemonic.59 Ferran Requejo, a Catalan political theorist, has argued insightfully that it is extremely difficult to institutionalize citizenship in a multinational society.60 Such an enterprise often falters because of the heavy influence of the American model of federalism, which historically did not seek to accommodate plural identities. The dominant view across Canada owes a lot to Pierre Trudeau’s monistic understanding of Canadian national identity.61 As Dimitri Karmis clearly explains in his contribution to this book, Trudeau’s mental outlook was shaped by a deep distrust of all forms of nationalism, but particularly of Quebec’s ‘reactionary nationalism’; in the end, however, he found a way to reconcile his personal brand of cosmopolitan liberal individualism with Canadian nation-building. In Trudeau’s understanding, the Canadian nation-state is a territorial federation where individual and provincial equality rights require the implementation of a strictly symmetrical, or uniform, approach.62 Numerous public opinion surveys over the years have established the domination of Trudeau’s symmetrical and territorial vision in the hearts and minds of a majority of Canadians, whereas in Quebec a similar majority favors a multinational and asymmetrical approach.63 In a recent essay, Canadian political theorist Will Kymlicka provides the following analysis of the reverberations of this conflict on the political culture of federalism: But the crisis is equally a result of the rise of a particular form of nationalism among English-speaking Canadians. The latter have adopted a form of pan-Canadian nationalism that emphasizes the role of the federal government as the embodiment and defender of their national identity. English-speaking Canadians have a deep desire to act as a nation, which they can do only through the federal government; they also have come to define their national identity in terms of certain values, standards, and entitlements that can be upheld from sea to sea only through federal intervention in areas of provincial jurisdiction. In short, the only way for English-speaking Canadians to express their national identity is to undermine the provincial autonomy that has made it possible for Quebecers to express their national identity.

156  Caron, Laforest, Vallières-Roland The problem in Quebec-Canada relations, therefore, is not simply that Quebecers have developed a strong sense of political identity that is straining the bounds of federalism. It is also that Canadians outside Quebec have developed a strong sense of pan-Canadian political identity that strains the bounds of federalism.64

In such a context of polarized visions, it is difficult to be optimistic about the reinforcement of a culture of dialogue, of open political bargaining, between Canada and Quebec. The current polarization appears on many levels: it exists in elite political circles, and it has a strong popular basis in public opinions in both societies. Central bureaucratic elites enter into this circle of polarization when they try to impose ‘national standards’ to provide a normative structure to social programs applied to spheres falling into provincial jurisdictions. Some are tempted to characterize these forays as belonging to a new era of collaborative federalism. We fail to be convinced by this rhetoric. Rather, we see at work here a logic subordinating provinces to the primacy of the central government. In recent years, health care policy has been the most active field for the unfolding of such a logic. Education seems next in line. These bureaucratic forays and this subordinating logic of national standards have direct consequences for three dimensions on the cultural side of the Blindenbacher-Watts scale. First, national standards tend to concentrate decision-making in Ottawa. Second, whenever a level of government gives the equivalent of marching orders to the other level in important fields of public policy, the imposition of such norms is clearly inimical to the fostering of a reciprocal culture of dialogue. Finally, whenever they accept subordinating themselves to norms or standards dictated by the central bureaucracy, provinces yield their capacity to act as countervailing forces in the political system. Power is not counterbalanced when the authorities of one level of government abdicate their responsibilities. As Sarah Fortin demonstrates in her contribution in this volume, this is the kind of trend that drives federalists in Quebec – in government, in academia, and in the media – to the wall.



Conclusion



Taking our inspiration from research conducted under the auspices of the Forum of Federations, marching as well in the footsteps of a battery of experts and a cohort of Quebec politicians who have underlined the

Canada’s Federative Deficit  157

existence of a federative imbalance in Canada or lamented the erosion of the federal principle in the operations of our political system, we have in this chapter begun work leading to the formulation of a conceptual tool-kit in order to arrive at a reasonably objective judgment concerning the state of the federation and the health of federalism in Canada. Following the pioneering work of Blindenbacher and Watts, this tool-kit is made of a number of structural characteristics and an equivalent group of dimensions related to political culture. Whenever political scientists apply this ideal-typical scale to existing federations, they are bound to find deficiencies of varying degrees, for there is no such thing as perfection in any aspect of a political system. Measuring appropriately the scope of the federative deficit of a political system, these experts, if they so desire, will be in a position to recommend the sort of changes likely to improve the quality of existing institutions. With regard to Canada, we have attempted to describe the various external and internal factors relevant to understanding the nature and scope of the federative deficit of the country. Obviously, a serious consideration of comparable federal experiences would improve our reflections and give them greater objectivity. We hope that the Forum of Federations, and the international network of scholars doing their business in the International Political Science Association’s Research Committee on Federalism will have the means to go further than we have done here. At the end of our journey through the various dimensions of Canada’s political system, we conclude that the country operates with a federative deficit reaching a medium to high level. Once again, this conclusion must be qualified for two reasons. First, for our conceptual tool-kit to gain greater credibility as an objective device, all aspects on both axes of the scale will have to undergo additional stages of refinement. All aspects must become more concrete, more empirical. We are open to suggestions on this matter. Second, it is fully possible that when scholars do the in-depth comparative work that we alluded to earlier, Canada could get an enviable score on quite a number of indicators. Measured through the categories of the Blindenbacher-Watts scale, slightly modified by ourselves, existing regimes could all operate with a rather high federative deficit; if this were indeed the nature of things as they currently stand, Canada’s experiment with federalism would deserve to be considered more favourably than we have done here. We acknowledge, in the end, that the contemporary work on comparative federalism could lead us, and other people, to examine wheth-

158  Caron, Laforest, Vallières-Roland

er or not the expressions ‘federative balance’ or ‘federative equilibrium’ should be employed to refine our capacity to rank and evaluate such political regimes. In the end, Canada is undeniably a country where ‘scholarly federative vigilance’ is, comparatively speaking, a very important activity. Coming back to the categories of our own analysis in this chapter, we have seen that there are problems affecting all dimensions on the Blindenbacher-Watts scale. On the structural side, quite clearly, the first two principles are those that seem to have most suffered from recent trends. Stilll early in the twenty-first century, it is very difficult for Canada’s provinces to be recognized as sovereign entities in their own right, to obtain the cooperation of their partners in the central government with regard to the respect of the constitutional division of powers. On the axis concerned with political culture, the situation is notably worrisome with regard to the third dimension, dealing with the idea of open political bargaining. The quality of political dialogue in Canada suffers from weak relationships of trust and reciprocal loyalty between the federated partners. Although the problem appears to affect relations between all of the players, this is nowhere more true than between the governments of Canada and Quebec in the aftermath of the 1980 and 1995 referendums. In our understanding, such difficulties remained substantially in place at the end of the life of Stephen Harper’s minority government in early September 2008. Clearly, a positive change of tone has been provided by Harper’s self-proclaimed doctrine of open federalism. The Harper regime did improve the political culture of federal dialogue. Real progress with regard to structural characteristics, if at all possible, will have to wait the formation of a new Canadian government after the 14 October elections. Notes   1 Raoul Blindenbacher and Cheryl Saunders, ‘A Global Dialogue on Federalism: Conceptual Framework,’ in John Kincaid and Alan G. Tarr, eds., Constitutional Structures, Origins and Change in Federal Countries (Montreal and Kingston: McGill-Queen’s University Press, 2005), 3.   2 John Kincaid, ‘Introduction,’ in Ann Griffith and Karl Nerenberg, eds., Handbook of Federal Countries 2002 of the Forum of Federations (Montreal and Kingston: McGill-Queen’s University Press, 2002), 3–13.   3 Ronald L. Watts, Comparaison des régimes fédéraux, 2nd ed. (Montreal and Kingston: McGill-Queen’s University Press, 2002).

Canada’s Federative Deficit  159   4 Raoul Blindenbacher and Ronald L. Watts, ‘Federalism in a Changing World – A Conceptual Framework for the Conference,’ in Raoul Blindenbacher and Arnold Koller, eds., Federalism in a Changing World: Learning from Each Other (Montreal and Kingston: McGill-Queen’s University Press, 2002), 10–11.   5 Ibid., 11.   6 Will Kymlicka and Jean-Pierre Raviot, ‘Vie commune: aspects internationaux des fédéralismes,’ Études Internationales 28/4 (1997): 816–21; Guy Laforest, ‘Se placer dans les souliers des autres partenaires dans l’union canadienne,’ in Guy Laforest and Roger Gibbins, eds., Sortir de l’impasse: les voies de la réconciliation (Montreal: Institute for Research on Public Policy [IRPP], 1998), 84; Kincaid, ‘Introduction,’ 9.   7 Donald Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987), 36–7; Richard Simeon and Ian Robinson, ‘The Dynamics of Canadian Federalism,’ in James Bickerton and Alain-G. Gagnon, eds., Canadian Politics, 4th ed. (Peterborough: Broadview Press, 2004), 106–7.   8 Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, Canada’s Founding Debates (Toronto: Stoddart, 1999), 478–9; Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, 1999), 272–4; Samuel LaSelva, The Moral Foundations of Canadian Federalism (Montreal and Kingston: McGill-Queen’s University Press, 1995), 54–5.   9 André Burelle, Le mal canadien: Essai de diagnostic et esquisse de thérapie (Montreal: Fides, 1994), 129–30. 10 Réjean Pelletier, ‘Constitution et fédéralisme,’ in Réjean Pelletier and Manon Tremblay, Le parlementarisme canadien, 3rd ed. revised and reviewed (Quebec: Les presses de l’Université de Laval, 2005), 48–9. 11 Joseph Facal, La mondialisation, le déficit fédératif et le cas du Quebec, 2000, 3, available at www.saic.gouv.qc.ca/centre_de_presse/discours/saic/ dis20000803.htm, accessed on 17 Oct. 2005; all translations ours unless otherwise indicated. 12 Jean Charest, ‘Pour redécouvrir l’esprit fédéral,’ La Presse (9 Nov. 2004), A19. 13 Harvey Lazar, Hamish Telford, and Ronald L. Watts, ‘Divergent Trajectories: The Impact of Global and Regional Integration on Federal Systems,’ in Harvey Lazar, Hamish Telford, and Ronald L. Watts, eds., The Impact of Global and Regional Integration on Federal Systems: A Comparative Analysis (Montreal and Kingston: McGill-Queen’s University Press, 2003), 5. 14 Roger Gibbins, ‘Federalism in a Digital World,’ Canadian Journal of Political Science / Revue canadienne de science politique 33/4 (2000): 670 and 682. 15 According to Gibbins, the Social Union Framework Agreement (SUFA) ‘has the following negative effect […] SUFA can be seen as a corrosive influence on Canadian federalism, one that diminishes the importance of

160  Caron, Laforest, Vallières-Roland jurisdictional boundaries and domains. SUFA provides a way to handle better interdependencies of contemporary federal governance, but in so doing it also diminishes the traditional importance of the constitutional division of powers,’ ibid., 684. 16 Earl Fry, ‘Quebec Confronts Globalization: A Model for the Future?’ Quebec Studies Journal 30/1 (2001): 58. 17 Pelletier, ‘Constitution et fédéralisme,’ 37–79. 18 Pierre Pettigrew, ‘La mise en œuvre de l’Énoncé de politique internationale du Canada,’ speech delivered at a meeting of the Canadian Institute of International Affairs, Ottawa, 24 Feb. 2005, available at http://w01.international.gc.ca/minpub/Publication.asp?publication_ id=383348&language=F, accessed on 21 Nov. 2005. 19 Hodge v. The Queen (1883–1884). Ap.Cas. 117, 132. 20 Benoît Pelletier, ‘L’état de notre fédération: la perspective du Québec,’ speech delivered at a meeting of the Canada West Foundation, 24 March, available at http://www.saic.gouv.qc.ca/centre_de_presse/discours/2004/saic_dis20040324.htm, accessed on 19 Oct. 2005. 21 François LeDuc, Guide de la pratique des relations internationales du Québec (Quebec: Ministère des Relations internationales, 2000), 83–4. 22 Ivan Bernier, ‘L’impact de l’internationalisation sur le fonctionnement de l’État: le partage constitutionnel des compétences,’ in Douglas M. Brown and Murray G. Smith, eds., Canadian Federalism: Meeting Global Economic Challenges? (Kingston: Institute of Intergovernmental Relations [IIGR], 1991), 66. 23 Daniel R. Kelemen, ‘Globalization, Federalism, and Regulation,’ in David Vogel and Robert A. Kagan, eds., Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies (Los Angeles: University of California Press, 2004), 273. 24 Bernier, ‘L’impact de l’internationalisation, 69. 25 Ann Griffiths and Karl Nerenberg, eds., Handbook of Federal Countries 2002 of the Forum of Federations (Montreal and Kingston: McGill-Queen’s University Press, 2002), 143. 26 LeDuc, Guide, 75. 27 David Cameron and Richard Simeon, ‘Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism,’ Publius: The Journal of Federalism 32/2 (2002): 64. 28 Lazar et al., ‘Divergent Trajectories,’ 20; André Lecours, When Regions Go Abroad: Globalization, Nationalism and Federalism, (2002), 4, available at http://www.iigr.ca/conferences/archive/pdfs1/lecours.pdf, accessed on 1 Nov. 2005. 29 Robert Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New-York Press, 1991), 85;

Canada’s Federative Deficit  161 Stéphane Kelly and Guy Laforest, ‘Aux sources d’une tradition politique,’ in Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, eds., Débats sur la fondation du Canada (Quebec: Les presses de l’Université Laval, 2004), 527–46. 30 Ajzenstat et al., Débats, 4–5. 31 LaSelva, Moral Foundations, 57; Guy Laforest, The Historical and Legal Origins of Asymmetrical Federalism in Canada’s Founding Debates: A Brief Interpretive Note (Queen’s University, Institute of Intergovernmental Relations’ Web Series on Asymmetrical Federalism, 2005), 2–3, available at http://www.iigr.ca/pdf/publications/372_The_Historical_and_Lega.pdf, accessed on 19 Oct. 2005. 32 Romney, Getting It Wrong, 274–5. 33 José Woehrling, ‘La Charte canadienne des droits et libertés et ses répercussions sur la vie politique,’ in Pelletier and Tremblay, Le parlementarisme canadien, 113–14. 34 Burelle, Le mal canadien, 64; see also Will Kymlicka, Finding Our Way: Re­think­ing Ethnocultural Relations in Canada (Don Mills: Oxford University Press, 1998), 166. 35 Marc Chevrier, Le fédéralisme canadien et l’autonomie du Quebec: perspective historique (Quebec: Ministère des Relations internationales, 1996), 8–9. 36 Alan C. Cairns, Reconfigurations: Canadian Citizenship and Constitutional Change (Montreal and Kingston: McGill-Queen’s University Press, 1995), 197; Peter Russell, ‘The Political Purposes of the Canadian Charter of Rights and Freedoms,’ Revue du barreau canadien 61 (1983), 49–50. 37 In most circumstances, this is done through legislative assemblies or referendum majorities. 38 Kelly and Laforest, ‘Aux sources d’une tradition politique,’ xvii. 39 Woehrling, ‘La Charte canadienne,’ 115. 40 Jeremy Webber, Reimagining Canada (Montreal and Kingston: McGillQueen’s University Press, 1993), 210; Kymlicka, Finding Our Way, 158–64. 41 Guy Laforest and Éric Montigny, ‘Le fédéralisme exécutif: problèmes et actualités,’ in Pelletier and Tremblay, Le parlementarisme canadien, 355–6. 42 Martin Papillon and Richard Simeon, ‘The Weakest Link? First Ministers’ Conferences in Canadian Intergovernmental Relations,’ in J. Peter Meekison, Hamish Telford, and Harvey Lazar, eds., Canada: The State of the Federation 2002: Reconsidering the Institutions of Canadian Federalism (Montreal and Kingston: McGill-Queen’s University Press, 2004), 114, 125–6, and 130. 43 Laforest and Montigny, ‘Le fédéralisme exécutif,’ 351–2. 44 Papillon and Simeon, ‘The Weakest Link?’ 132–4. 45 Keith Archer, Roger Gibbins, Rainer Knopff, and Leslie A. Pal, Parameters of Power: Canada’s Political Institutions (Toronto: ITP Nelson, 1999), 133–71.

162  Caron, Laforest, Vallières-Roland 46 Laforest, Historical and Legal Origins. 47 Cairns, Reconfigurations. 48 Ibid., 146; see also Richard Simeon, Political Science and Federalism: Seven Decades of Scholarly Engagement (Montreal and Kingston: McGill-Queen’s University Press, 2002), 24. 49 Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver and Toronto: UBC Press, 2000), 6. 50 Archer et al., Parameters of Power, 163. 51 Éric Montpetit, ‘Les réseaux néocorporatistes québécois à l’épreuve du fédéralisme canadien et de l’internationalisation,’ in Alain-G. Gagnon, ed., Québec: État et société, vol. 2 (Montreal: Québec Amérique, 2003), 201–2. 52 Andrew Sancton, ‘Municipalities, Cities, and Globalization: Implications for Canadian Federalism,’ in Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness and Legitimacy (Don Mills: Oxford University Press, 2002), 261–77. 53 Michael Keating, Les défis du nationalisme moderne: Québec, Catalogne, Écosse, (Montreal and Brussels: Les presses de l’Université de Montréal et Les presses universitaires européennes, 1997), 71. 54 Michael Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford: Oxford University Press, 2001), 29–30. 55 Philip Resnick, The Masks of Proteus: Canadian Reflections on the State (Montreal and Kingston: McGill-Queen’s University Press, 1990), 210–11. 56 Robert J. Jackson and Doreen Jackson, Politics in Canada: Culture, Institutions, Behaviour and Public Policy (Toronto: Prentice-Hall, 2001), 5–6. 57 Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001), 118. 58 Joseph Facal, Le déclin du fédéralisme canadien (Montreal: VLB, 2001), 13. 59 Kymlicka, Politics in the Vernacular, 23–55. 60 Ferran Requejo, ‘Federalism in Plurinational Societies: Rethinking the Ties between Catalonia, Spain, and the European Union,’ in Dimitrios Karmis and Wayne Norman, eds., Theories of Federalism: A Reader (New York: Palgrave Macmillan, 2005), 311–20. 61 Kenneth McRoberts, Un pays à refaire (Montreal: Boréal, 1999). 62 See Dimitrios Karmis, ‘Pluralisme et identité(s) nationale(s) dans le Québec contemporain: clarifications conceptuelles, typologie et analyse du discours’ in Gagnon, Québec, vol. 2. 63 Karine Fortin, ‘Plus de Québécois voteraient aujourd’hui en faveur de l’Accord de Charlottetown,’ Le Devoir (21 Oct. 2002), A4. 64 Kymlicka, Finding Our Way, 166.

5 Federalism in Canada: Provinces and Minorities – Same Fight andrée lajoie

There is a tension in Canadian federalism, and probably in that of other countries, too, that seems to explain both the centralization of power in federal hands at the expense of the provinces and the limits to the integration of minority values into Canadian law. These constitute two parallel universes, despite appearances, and they have to be studied separately if they are to be compared and if their common relationship with the dominant interests is to be identified. At first sight, the centralization of jurisdictions and powers in the Canadian federation seems to have evolved independently of the status of minorities. Probably this is at least partly because the two constitutional issues arose one after the other. Yet, the reality is very different, and to see this we have to look at, first, the centralization of jurisdictions and powers1 and, then, the integration of minority values. Centralization of Jurisdictions and Powers: Instruments To fully grasp the exceptional extent of the centralization of jurisdictions and powers in the Canadian federation, as well as the explanatory factors for this situation, we need to analyse the instruments of centralization. We also have to situate the process in the context of its historical evolution, which will follow. Three types of constitutional instruments are responsible for cen­ tralization in the Canadian federation: the Constitution itself, which defines the division of powers; in interaction with it, judicial interpreta­tions of the Constitution; and, third, the Executive’s constitutional practices.

164 Andrée Lajoie

The Constitution and the Initial Division of Powers The Constitution Act, 18672 (until 1982 called the British North America Act), institutes an initial division of legislative jurisdictions, essentially contained in Sections 91 to 95, and familiar enough for me to avoid describing them in detail here. It suffices to note that the federal competencies more or less reproduced those of Great Britain until then, which were at that point devolved to the Canadian bourgeoisie that had emerged out of colonialism. The 1867 text has but few sparse provisions regarding executive powers. It incorporates those already assigned to the executives of the colonies composing the Dominion of Canada, as well as others concerning some judicial appointments and the expropriation of provincial lands for defence. However, in an 1892 decision3 – that the Supreme Court recently reaffirmed in Reference re. Secession of Québec4 – the Judicial Committee of the Privy Council (JCPC) in London ruled that these powers were to be divided in accordance with the legislative powers set out in the Constitution Act, 1867. As we shall see, it is not so much the initial constitutional text that is responsible for the present centralization in the Canadian federation, but rather judicial interpretations of the division of powers and the government practices that have developed in parallel since Confederation. Interpretive Theories The colonial origins of the Canadian confederation resulted in a legal system that was paradoxical for a long time. For many years, conflicts in interpreting the division of powers between Parliament and the various provincial legislatures were resolved by a foreign body: the JCPC was the court of last resort until 1949, even after the creation of the Supreme Court of Canada in 1875. All constitutionalists agree that the colonial tribunal’s decisions were the most decentralizing that Canada’s Constitution has ever known.5 This was precisely because the body was foreign. London did not lose the powers that the JCPC attributed to Canada’s provinces, unlike the Government of Canada, which appoints Supreme Court justices. Throughout the period, the JCPC thus affirmed the provinces’ legal autonomy with respect to federal tutelage, and insisted on strict compartmentalization of the division of powers. Yet, before giving way to the Supreme Court, the JCPC had already designed some of the instruments that would reverse its own trend, although it had not applied them. These are five interpretive consti-

Provinces and Minorities – Same Fight  165

tutional theories. The first three – implicit ancillary power, federal preponderance, residual jurisdiction – relate to the design of the constitutional text; the other two – national dimensions and state of emergency –appear to be exceptions to the application of the stated division of powers. I will not analyse the JCPC and Supreme Court of Canada decisions that led to and later implemented these theories; it should be shown, however, how they all favour centralization. implicit ancillary power Implicit ancillary power allows Parliament to legislate in areas of ‘exclusive’ provincial jurisdiction if the effective exercise of its own powers so requires.6 How can a jurisdiction be both exclusive and validly invaded by another level of government? This should have required at least a clear interpretation of the criteria of necessity, the logic of the concept, and its equitable application to provincial powers, but this was not provided, as we will see in our analysis of the second period of the evolution of Canadian federalism. federal preponderance In the case of conflict between provincial and federal legislation, both initially valid and on the same topic but incompatible in their application, the JCPC decided in 18967 that federal legislation would prevail. Later, Canadian courts extended the scope of this theory to potential conflicts in the application of two norms or principles.8 residual jurisdiction Basing itself on Section 91(29) of the Constitution Act, 1867, which expressly establishes federal jurisdiction over ‘Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces,’ the JCPC confirmed federal jurisdiction over all matters not specified in the list of provincial powers, except for issues that are clearly local.9 It is easy to imagine the centralizing effect of this theory a century and a half later, when issues that were not listed because they did not exist or could not be governed by a nineteenth-century liberal state, such as aeronautics and telecommunications, took on their well-known importance in contemporary legislation. national dimensions It was but a small step from residual jurisdiction to the theory of nation­

166 Andrée Lajoie

al dimensions – step outside the constitutional text – and one that the JCPC took lightly in declaring legislation prohibiting the sale and public consumption of alcohol to be a federal jurisdiction because that plague had reached ‘national dimensions.’10 Combined with the state of emergency, from which it is not always clearly distinguished, this theory was applied a number of times in later years. It has recently come back onto the scene because of its connection with the concept of subsidiarity.11 state of emergency State of emergency was invoked in its own name and without the support of the theory of national dimensions.12 It was also used as a basis for ‘special measures to deal with crisis situations arising out of civil unrest, war, or economic upheaval. In fact, Canada has been subject to emergency legislation in one form or another for around 40% of the time since World War I.’13 These theories have to be assessed cumulatively. There is not much left for the constituent states of a federation if the central authorities can legislate in their own areas of jurisdiction, in residual areas of jurisdiction, and finally, in ‘exclusive’ provincial fields of competence in every case where this is deemed ‘necessary’ to the exercise of a central competency; in matters where a potential conflict might arise in the application of legislation; where ‘national interests’ are involved; or when a state of emergency is declared. Yet, this has not been enough to satisfy Canada’s federal authorities, who have wanted to go even further. The Executive’s Constitutional Practices In addition to these extensive and centralizing judicial interpretations of Canada’s Constitution, a number of government practices have developed to centralize control, first, over the land, and then over the economy as a whole. Until the Second World War, the Canadian government limited itself to practices that were at least authorized by the Constitution, but later it developed other practices in parallel with if not in contradiction to the principles that, according to the Supreme Court, underlie it. The Canadian government has used a number of instruments to centralize control, including the following: the right of disallowance, declaratory power, the right to acquire public property, and spending power. The omnipresence of such instruments makes some federal competencies indefinitely expandable.

Provinces and Minorities – Same Fight  167

rights of disallowance and reservation Sections 56 and 57 of the Constitution Act, 1867, give the governor general the right to disallow or reserve legislation, including provincial legislation. Disallowance means using the discretionary power to annul a piece of legislation right at the moment it is passed. Reservation means the legislation is placed in the twilight of suspension for two years. Used mainly with respect to legislation passed by the western provinces at the beginning of Confederation, these powers have fallen into disuse: disallowance in 1943 after 112 uses and reservation in 1961 after 70 uses.14 It seems that the principle of federalism quickly triumphed after 1867, at least according to a recent Supreme Court of Canada decision.15 declaratory power Provided for in the constitutions of a number of federal countries, the constitutional mechanism of ‘declaratory power’ implies that Parliament can change on its own initiative – to the detriment of members of the federation and without their consent – the sphere of its legislative jurisdiction by extending it to ‘works’ that Parliament declares to be for the general good of the federation. In Canada the wording of Section 92(10.c) of the Constitution Act, 1867, authorizes such discretionary declarations. Until this power fell into disuse in 1961 because of lack of legitimacy, Parliament had made 470 such declarations16 covering not only railways, roads, and other forms of intraprovincial transportation, but also tramways in Montreal, Quebec City, and Ottawa; local bus lines, hotels, restaurants, theatres, logging companies, livestock raising, construction, liquid air and chemical plants, metal refineries, aqueducts, and parks, not to mention Niagara Falls.17 Do we need to insist on the effects of this mechanism, which the courts abetted by refusing to limit Parliament’s discretion? acquisition of public property Since Parliament has legislative jurisdiction over public property, the government has only to acquire real estate for it to be subject to federal jurisdiction. Before the Second World War, the Government of Canada generally restricted itself to constitutionally valid purchases, such as in the downtown cores of the largest cities. Officially meant for federal public buildings, the acquisitions were, in fact, designed to control urban development, a local matter if ever there was one and devolved to provincial jurisdiction. Control over urban development was thus

168 Andrée Lajoie

shifted to the federal government, thanks to the combination of public property and the theory of federal preponderance. These practices, in addition to assigning public land to (federal) Crown corporations, particularly those involved in transportation, and establishing federal competency over national ports and airports, gave federal authorities control over urban areas at a crucial point when the provinces had not yet privatized their jurisdictions. Later, for the same reasons, the federal authorities expropriated large tracts of land, far exceeding the needs invoked. The validity of these actions was dubious, but a breach was made that would allow the federal Executive to operate beyond the limits of the Constitution. spending power Federal ‘spending power’ is another unconstitutional practice. The very wording of this federal centralizing instrument is confusing, and its success is therefore one of the most spectacular feats of ideological legitimization in the constitutional vocabulary. What could be more normal than a government’s power to spend? Thus, by framing spending power as a basis for intervention, a federal government can invoke constitutional orthodoxy by association and seem to give its actions unquestionable validity. However, far from designating practices that are valid only when they are conducted within federal jurisdictions, the expression ‘spending power’ as consecrated in Canadian constitutional discourse refers to the ideological affirmation of a constitutionally nonexistent federal power to spend in provincial jurisdictions and impose conditions equivalent to normative intervention. After detailed analysis, I have shown that the constitutional validity of this power, on which doctrine is divided, has not been confirmed in case law either.18 This has obviously not prevented Canadian federal authorities from invoking ‘spending power’ to support their actions. Since the Second World War, this has taken the form of conditional funding for: various provincial governments – which have gone along with the practice rather than forgo the fruits of taxation of their citizens – particularly in health care and social security; individuals, notably in the form of scholarships and chairs in the field of education, and tax breaks for specific purposes; and more recently municipalities, which, like health care and education, fall under provincial jurisdiction. This brief description of centralizing instruments operating in Canadian constitutional practices already gives an idea of the centripetal trends in a federation, if it can still be called that, in which federal

Provinces and Minorities – Same Fight  169

authorities have been highly inventive in finding ways to adjust the division of powers to their advantage. Yet, to truly grasp the combined impact of these instruments, they have to be placed in historical context. Centralization of Jurisdictions and Powers: History The history of centralization in Canada can be analysed in three stages: from Confederation in 1867 to the end of the Second World War, from the war to the 1982 Canadian Charter of Rights and Freedoms, and finally, the period since the Charter. I will summarize this history rapidly.19 Confederation to the End of the Second World War As we have seen, the period from Confederation to the end of the Second World War was the least centralizing under Canada’s Constitution, at least with respect to judicial interpretation. In fact, during this period, the Judicial Committee of the Privy Council restricted itself to drawing up centralizing theories without applying them in the appeals with which it was seized. Centralization was instead established in the Canadian Constitution through the exercise of the right of disallowance and declaratory power. From the War to the Charter of Rights and Freedoms The abolition of appeals to the JCPC in 1949 was a turning point in the interpretation of the division of powers established by the Constitution Act, 1867. From then on, the Supreme Court of Canada became the court of final appeal for such debates and, generally, decided them in the interest of the federal government. This institutional and interpretive change reflected deeper political changes. First, Canadian nationalism was in full bloom, given a new world situation favouring North America at the expense of Europe. Above all, in most Western countries the centralizing effect of the war, which had required efficiency at all costs, shifted power away from elected representatives and into the hands of the Executive, away from those on the periphery and towards those in the centre. Three forms of federalism succeeded one another in this period. The first, which can be called unilateral federalism, lasted from 1949

170 Andrée Lajoie

to 1960. In it, the combined effects of Quebec’s distrust of the Supreme Court of Canada and the non-interventionism of the Duplessis government halted the Quebec constitutional challenge at its source. The Supreme Court upheld restrictions on provincial jurisdiction and ruled in favour of implicit federal competency and extension of jurisdictions that were properly speaking federal. In the case of criminal law and development, the Court’s reasons were based on theories flowing from instruments that had already been refined by the JCPC, and in the case of labour law and commerce, on new concepts invented by the Court itself. These changes also had repercussions on constitutional policy, in which half-victories in no way counterbalanced the centralizing constitutional practices that the federal government continued to invent, in particular with respect to expropriation and spending power. From 1960 to 1975 there was dialogue-based federalism. With the beginning of the Quiet Revolution, many more challenges came from Quebec owing to its nationalistic claims and consequent questioning of the very principle of federalism. The Supreme Court received the new claims more favourably, and there was a movement towards a dialogue-based federalism in which two integrating legal principles – two parallel systems of interpretation – developed: one for Quebec and another for the rest of Canada. In fact, at the legal level, the changes from the previous stage were remarkable: while the only two decisions concerning Quebec parties and division of powers had been unfavourable to Quebec in the preceding period, between 1960 and 1975 two-thirds of the Supreme Court’s constitutional decisions in Quebec cases were favourable to the province. The change was all the more spectacular because it went against the general trend in the division of powers, which continued to be centralizing during those fifteen years. With respect to constitutional practices also, there was openness to Quebec at the beginning of this period. Revenue gains, such as through taking control of electricity and setting up a pension plan separate from the corresponding federal programs, were obtained through long negotiations. There were also mitigated successes, such as a reworking of the tax pie, leaving the provinces with less than a quarter of the taxes paid by individuals and an infinitesimal share of those paid by companies. This reduction was compensated by joint programs related to spending power. After 1966 these half-successes were followed by real failures in terms of language, culture, and even natural resources, particularly concerning rights to the submarine continental shelf, which were the subject of long negotiations but finally determined by the Supreme Court of Canada to the detriment of the provinces.

Provinces and Minorities – Same Fight  171

Beginning in 1975 the brief period of dialogue to which the Court had consented was replaced by a process of standardizing federalism. The interpretative effect of the two cultures thus disappeared when, rejecting Quebec’s veto over constitutional amendments, the Supreme Court approved unilateral patriation of Canada’s Constitution. In fact, the Court’s case law did a double flip. Its general trend towards centralization with respect to all of the provinces inverted, and most of its decisions favoured provincial powers in the areas in question – labour law, transportation, taxation, financial institutions, commerce – except with respect to the environment and development. Yet, the real exception did not concern a ratione materiae, but a ratione loci: Quebec. For, and this was another, less spectacular reversal, the Court’s new trend was opposite when it came to cases from Quebec: in two-thirds of Quebec cases, the decisions favoured federal powers. In short, for Quebec this was the end of the moratorium on centralization that, unlike the other provinces, it had experienced in the preceding stage, when the Quiet Revolution had established a different power relationship. In terms of constitutional practices, the period after 1975 was clearly dominated by the failure of negotiations concerning Quebec’s conditions on patriating the Constitution, in particular with respect to compensated withdrawal from federal programs. At the same time there were modest changes in the division of powers with respect to natural resources and interprovincial trade, although these did not apply to Quebec but to the western provinces, which had been demanding them more strongly and with greater relative power than Quebec. Obtained at last from the British Parliament by Canadian federal authorities, without the consent of the Quebec government – to which a majority of Québécois had just refused independence in the 1980 referendum – the Constitution Act, 1982, marked the beginning of a new era. After the Charter of Rights and Freedoms The period following the unilateral patriation of the Constitution and adoption of the Charter of Rights and Freedoms coincided with the arrival in Canada of a wave of neo-liberalism that was flowing through Western democracies. One might have thought that it would lead to minimal government and, thus, less centralization. On the contrary, the weakening of the political powers underlying the claims of Quebec sovereigntists encouraged the federal government and the Supreme Court of Canada in their natural centralizing tenden-

172 Andrée Lajoie

cies, which were renewed with respect to all of the provinces – and accentuated in the case of Quebec. Moreover, this period was also one of liberalization of trade in North America. This movement was prepared by the Macdonald Commission and made concrete by the January 1994 North American Free Trade Agreement (NAFTA), which was under discussion at the time. NAFTA’s centralizing requirements prevailed with respect to both constitutional practices and case law. In fact, starting in 1984, the Charter of Rights and Freedoms monopolized almost all of the Court’s time.20 Under such circumstances, decisions concerning the division of powers were obscured, and they no longer received the same attention as they had before. Not least among the Charter’s effects was to make the centralizing results of such decisions virtually unnoticed, particularly with respect to the economy. This makes it all the more important to look at them carefully and assess their scope. The Supreme Court of Canada and the Charter Looking back now over the twenty-five years since the Charter was adopted, what is striking is how quickly power was centralized. This is true across Canada, but accentuated in the case of Quebec. However, when I analysed this for the first time in 1993, I was most struck by the federalization of the competencies required for the Canadian economic union. With respect to the economy, the Supreme Court of Canada performed centralization analogous to what it had earlier achieved concerning land development. The Court strictly limited the extraterritorial effect of provincial legislation by increasing the effect of federal statutes. Federal weight was increased with respect to potential conflicts – which was equivalent to reintroducing into interpretation the concept of ‘unoccupied field’ that had been set aside not only by the Judicial Committee of the Privy Council but even more recently by the Court itself. This set of apparently disparate decisions began to sketch a federalization of the competencies required for the ‘Canadian economic union’ contemplated by the Macdonald Commission, in short, a constitutionalization of the requirements of free trade, which was winning over the Progressive Conservative Party of Canada at the time. These effects should not be underestimated. Yet, we should also not overlook the more global image that is forming of this period after nearly twenty-five years, namely, that of even broader centralization, in line with the Court’s general trend.

Provinces and Minorities – Same Fight  173

We have identified fifty-eight Supreme Court decisions concerning the division of powers and rendered between patriation of the Constitution Act, 1982, and 2002. Of these decisions, 58.6 per cent were in favour of the federal government against 41.4 per cent in favour of the provinces. The federal government won 75 per cent of cases concerning Quebec. Governments after the Charter In parallel, with respect to constitutional practices, there was one failure after the next: the Meech Lake Accord (1987–90), the Bélanger–Campeau Report (1990), the federal proposal ‘Shaping Canada’s Future Together’ (1991), and the Charlottetown Accord (1992) all came up against a lack of consent from the rest of Canada. Since then, however, the federal authorities have unilaterally eaten away at provincial jurisdiction over education, particularly concerning university teaching and research. At first this was done surreptitiously, since the research councils belong to the Department of Industry, but especially since 1996 with growing implementation of thematic research programs and the establishment in 2000 of the Canada Research Chairs program. It is clear that in future precedence among fields of research will be determined by their value on the market and that there will be a perverse imbalance between research monies invested in directed and applied research and funding for free and basic research. It is also clear that the provinces will be unable to control their higher education policies, especially with respect to research. Federal authorities are thus invading provincial jurisdictions and, in the case of compulsory partnerships, selling provincial competencies to the private sector. The latter is being accomplished using an old but tried and true instrument that is particularly effective when it targets individuals, not governments, and thus evades judicial control: spending power. In this respect, we also have to mention the Canadian Social Union Framework Agreement,21 an administrative document with no constitutional validity that establishes a federal–provincial program to govern the management of social policy.22 It is also based on the power to spend, and the agreements signed between the Martin government in Ottawa and the provinces have changed nothing, despite appearances. Thus, all social policies have been placed in federal hands, not through constitutional amendment but by a simple federal–provincial admin-

174 Andrée Lajoie

istrative agreement that does not need to be constitutionally valid to have concrete effects. At the end of the three periods of growing centralization in Canadian federalism, it is clear that not only competencies that are strategic for development, such as economics, communication, urban planning, environment, and natural resources, but also much more traditional jurisdictions such as labour relations, transportation, and even matrimonial regimes have been almost entirely federalized through case law. Even more serious, at least for Quebec, areas related essentially to cultural reproduction, such as higher education and social programs, now escape provincial control owing to administrative agreements. What remains in provincial hands? What remains are the following: limited taxation power and financial responsibility (without the corresponding independence) for university teaching; social services; health care; primary, secondary, and post-secondary education; public property; public works; part of civil law; and a reduced part of the judicial system. When we look at how Quebec has been treated with respect to cen­tralization, we can already get a glimpse of the link between the constitutional fate of the provinces and that of minorities in Canada. However, we first have to look more closely at the processes at work in terms of the integration (or non-integration) of minority values into Canadian law. Integration of Minority Values into Canadian Law We need to situate our observations concerning one of the political minorities in Canada, the Québécois, in the broader context of relations among judicial and political powers and minorities, be they social (women, gays, and lesbians) or political (Aboriginal peoples and Québécois). Lack of space prevents me from reviewing the detailed analyses that I have devoted to this issue in Quand les minorités font la loi.23 Here I will limit myself to noting relevant conclusions only, by examining the integration into Canadian law of the values of each of the mentioned groups (1) by judicial and (2) by political means. Judicial Integration of Minority Values the fate of gay and lesbian values A survey of the values promoted by gays and lesbians in their submis-

Provinces and Minorities – Same Fight  175

sions in Supreme Court cases, as well as interviews with members of leading representative groups, resulted in the following list of values, in order of decreasing frequency, and thus in a certain sense in order of decreasing importance: equality, dignity, recognition and respect for identity and difference, social solidarity, pluralism, and freedom of expression. Equality is also the leading majority reason for which the Supreme Court of Canada has granted the appeals of gays and lesbians, although the Court affirms this value only in principle and never in circumstances where it could be given concrete effect. Dignity, recognition and respect for identity and difference, and social solidarity are values that until the recent Reference re. Same-Sex Marriage24 entered into the Court’s discourse only through the opinions of dissenting justices. The one exception was Vriend,25 in which the Court inscribed prohibition of discrimination against gays and lesbians in the Human Rights Code of Alberta by ‘reading it in.’ In that case, the Supreme Court’s usual minority led the majority to affirm the values in the context of a declaration of principle without concrete application. As for pluralism, citizenship, and freedom of expression, of which the Court is normally so fond, the silence is total. An implicit model can be seen in these decisions, according to which three conditions have to be fulfilled for the Supreme Court to intervene in favour of the rights of this group: the legislation has to be shown to be inadequate; legislative amendment has to be difficult, owing to constitutional rigidity or local conservatism; and the action has to be on the symbolic level of principles, without leading to concrete application, particularly with respect to public spending. The Court has never awarded public funds to gays and lesbians, and when it provided spousal support to the same-sex ex-spouse of a lesbian, it repeated twenty-one times that the purpose was ‘to alleviate the burden on the public purse.’ the fate of women’s values Values promoted by women and the order in which they are presented are rather different, namely, equality, justice, democracy, personal dignity and integrity, freedom, and empowerment. Some of these values are found in the Court’s discourse, for example, equality, freedom, justice, dignity/integrity, and democracy; however, they are presented in a different order and in some cases, such as respecting democracy and freedom, with different meanings attached.

176 Andrée Lajoie

The structure that emerges shows that there is a dichotomy between two sets of decisions. The first contains cases concerning women’s private lives, that is, abortion and violence in all its forms. The majority of these cases are allowed by the Supreme Court of Canada, at least in part, and the values invoked are mainly integrity, dignity, justice, and sometimes even equality. The second set covers women’s public lives, in particular work and political activity, and contains appeals related to social, political, and economic discrimination. The Court rejects the majority of such cases, sometimes explicitly on grounds of equality, and cites legislators’ intentions, the government’s freedom, freedom of association, individual justice, and spousal equity and independence. In short, women can have private lives free of family, sexual, and even symbolic violence, and the Supreme Court will protect women from the psychological dangers of undesired pregnancy. When, however, it comes to money and power, things are different. In the public sphere, neither economic equality nor significant political or social participation are available to them, especially if, as well as being women, they are also Aboriginal. the fate of aboriginal values The picture of judicial integration of Aboriginal values that emerges out of a comparison of the values promoted by Aboriginal peoples and those entertained by the Supreme Court of Canada shows that, overall, most of the values carried in Aboriginal discourse (aside from that of women) are integrated into Canadian law by the Court. Identity and protection of the environment and wildlife resources (which are part of the ‘Mother Earth’ concept), but not self-sufficiency as such, are included in core Aboriginal values and are admitted by the Court without changes in meaning. They are used to validate most Aboriginal victories, and the same goes for respect and justice. The Supreme Court’s discourse, like Aboriginal discourse, also asserts the protection of trust and freedom of expression democracy pair, although less often. The relevant decisions do not, however, seem to clearly favour either Aboriginal peoples or their adversaries. The Aboriginal values that are conspicuously absent in the Supreme Court’s decisions are political self-determination and control over the land. To our knowledge, the Court has mentioned these values only once, and only to reject them explicitly. It should be noted that the values specific to the Court include the predominance of non-Aboriginal economic interests and the Canadian sovereignty–rule of law pair. The

Provinces and Minorities – Same Fight  177

Court’s use of these values has both contrasting and complementary effects. In other words, the Supreme Court of Canada dismisses the great majority of political appeals, and allows only those concerning status rights, for example, the rights of off-reserve Inuit and Indians and Aboriginals in general against the rights of non-Aboriginals, but does not allow appeals concerning political control, particularly with respect to exemption from Canadian jurisdiction. Yet, the Court allows almost half of the appeals by Aboriginals relating to economic claims, including those concerning tax exemptions analogous to those that it has refused women and gays and lesbians. the fate of québécois values The fate reserved by the Supreme Court of Canada for Quebec values varies depending not only on the value in question but also, as we have seen, the point in time, the economy (particularly to accommodate the development of the Keynesian state), and the political context, notably in reaction to the development of the sovereigntist movement in Quebec. Beginning with Québécois identity, the decisions of the Supreme Court in which it has been cited integrated the requirements for Québécois identity only insofar as these targeted lower levels of government, such as municipalities and school boards. Such integration has been rejected where the issues concerned the population of Quebec as a whole. This dichotomy can be explained by the presence of an Englishspeaking minority in Quebec – the land of the French-speaking minority in Canada – although English speakers are the majority in Canada as a whole. Quebec’s English-speaking minority has separate school boards. Furthermore, at the time when the Court issued its decision concerning the use of only French in documents issued by the Government of Quebec,26 it was concentrated in separate municipalities where it was the majority, such as in Montreal and the Eastern Townships. The minority population of Quebec was therefore not affected if a government body was given the right to produce documents in French only. The situation could change, however, now that a large number of municipalities have been merged into Greater Montreal. In contrast, English speakers are a minority with respect to Quebec provincial institutions and the overall Quebec society. This is the reason for which the Supreme Court of Canada has protected bilingualism in the Quebec justice system,

178 Andrée Lajoie

the provincial legislature, public services in Quebec, and commercial advertising in Quebec. Indeed, it is in the name of one of its own values, which flow through all of its constitutional case law, namely, Canadian sovereignty understood in the sense of centralization of jurisdictions and powers in the hands of federal authorities, that the Supreme Court of Canada has dismissed three-fifths of appeals originating from Quebec concerning the division of political powers. One might think that the fate of the Quebec minority is not worse in this respect than that of the other provinces taken as a whole, for their success in the Supreme Court with respect to the division of political powers has been even lower. The Court’s centralizing trend is independent of Quebec. This would, however, be to delude oneself about the relative strength of and explanations for centralization with respect to Quebec. In Quebec centralization has had stronger effects on the division of political powers because it contradicts Quebec’s assertion of identity, which is not an issue for the other provinces. Furthermore, it does so in a way particularly marked by the exceptional scope of some decisions in which the Supreme Court has refused to integrate the special metaconstitutional role that Quebec claims, specifically with respect to its right to veto constitutional amendments, not to mention the validity of a referendum on secession. The explanations can be found in our earlier analysis of the centralization that the Supreme Court of Canada has achieved with respect to appeals from Quebec in comparison with those from the rest of Canada during the same periods. There is a clear coincidence that would surprise only positivists who believe that the courts use deduction to apply objective legal principles to established facts. On the contrary, and as in the case of Aboriginal peoples, the Supreme Court of Canada has shown itself to be infinitely more accommodating with respect to Quebec’s economic self-sufficiency, allowing all claims with respect to taxation, for example, validation of the Quebec sales tax, taxes on non-residential real estate (immovables under the Civil Code), and fees levied by the Régie des marchés agricoles. As in the case of Aboriginal peoples, not only does this look like a quid pro quo in relation to the political and territorial claims rejected, but given the special features of the division of powers between provincial and federal authorities in the Canadian Constitution, the Court does not remove from the federal tax pie what it makes available to the provinces. Finally, the treatment that the Court reserves for Quebec with

Provinces and Minorities – Same Fight  179

respect to land is the same as for Aboriginal peoples. So long as what is in question is an interprovincial quarrel, the Supreme Court may take Quebec’s side against Newfoundland and Labrador. Openness has its limits, however, when what is in question is Canadian sovereignty over the territory, as in Reference re. Secession of Québec.27 Political Integration of Minority Values social minorities While the strategies of social minorities do not focus exclusively on legislation, it is mainly through the adoption of legislative measures that the progress of their interests can be tracked in law. Thus, among women’s groups in Quebec, where such strategies are more common than appeals to courts, major victories have been won including the following: increases in the minimum wage, adoption of legislation on pay equity, and the creation of a state-funded daycare network. All of these measures are clearly linked to political action by women, specifically the 1995 march organized by the Fédération des femmes du Québec (FFQ), which occurred not only in the midst of growing neo-liberalism but also at a time when the Quebec government was seeking to reduce its deficit to zero. On the surface, gays and lesbians seem to have had even more successes in the provincial legislatures and the Canadian Parliament. However, it should be taken into account that these groups began with a greater handicap; unlike women, they did not have the protection of Section 15 of the Canadian Charter of Rights and Freedoms, which did not include sexual orientation as a form of prohibited discrimination when it was adopted in 1982. Moreover, a number of legislative victories were won only after court intervention, although this was not always the case. Some legislatures acted proprio motu: Quebec, before all the others and even before adoption of the Charter, and then Ontario, Manitoba, the Yukon, and Nova Scotia. In order to get Parliament and the other provinces to do likewise, the Ontario Court of Appeal had to affirm that Section 15 of the Canadian Charter included sexual orientation as a form of prohibited discrimination. British Columbia, Saskatchewan, and New Brunswick followed the Ontario decision, while Newfoundland and Labrador and Prince Edward Island waited for confirmation from the Supreme Court. Alberta’s obstinate refusal to amend its Individual’s Rights Protection Act led the Supreme Court of Canada to use the technique of judicial ‘reading in’ for the first time, in

180 Andrée Lajoie

Vriend.28 The legislation of the Northwest Territories has no instrument prohibiting discrimination on the basis of sexual orientation. In all of these cases, the origin of redress was constitutional. In domestic law, the legislator’s silences, particularly in social, family, and labour law, have long been interpreted as meaning that gays and lesbians were excluded from definitions based on the notions of ‘couple’ and ‘family,’ not to speak of the benefits that these designations imply. However, some provincial legislatures have recently begun to change this situation, and it remains to be seen how Parliament will comply with the Supreme Court’s recent opinion in Reference re. Same-Sex Marriage.29 Finally, adoption, which had until then been impossible for homosexual couples, has been authorized in British Columbia, Saskatchewan, Ontario, Newfoundland and Labrador, and Nova Scotia (as of the 28 June 2001 Nova Scotia Supreme Court decision),30 whether or not the child in question is related to either member of the couple. In Alberta homosexual couples are legally permitted to adopt only if the child is related to one of the spouses. political minorities While the two political minorities we are studying here have been treated by the courts in a more or less similar manner, this is not true of governments, which have integrated and supported Aboriginal values up to a certain point but have completely rejected the claims of the Québécois. Aboriginal Peoples. If we set aside the Indian Act,31 which unilaterally governs Aboriginal peoples and is a major exception, treaties and agreements have been the means by which governments have received this political minority. All central Aboriginal values are recognized, although to varying degrees, in the agreements and treaties we analysed. Indeed, identity is not only the explicit foundation of the Paix des Braves Agreement,32 Déclaration de compréhension et de respect mutuel,33 Entente-cadre,34 and Sectoral Agreements signed between Kahnawake and Quebec,35 but the implicit basis for the Framework Agreement on First Nation Land Management,36 Nisga’a Final Accord,37 and Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada.38 Note that economic development of land and resources, like other powers involving varying degrees of local governmental independence are devolved to Aboriginal authorities in the last three agreements mentioned, but recognized by Quebec

Provinces and Minorities – Same Fight  181

in the cases of Kahnawake and the Crees. In both cases, this means that there is partial but permanent recognition of inherent political selfdetermination in the areas to which these sectoral agreements apply. The Québécois. The contrast with the fate reserved for Quebec values by Canadian federal political authorities is striking: federal political authorities have ceded no distinct identity, political power, instruments for economic self-sufficiency, or control over the territory. On the contrary, unilateral action has not diminished, far from it, but has intensified, especially since the results of the 1995 referendum, which were worrying for the federal government. This has led to a harder line being taken with respect to Quebec. Thus, there has been a complete failure to politically integrate the values and interests of the Québécois minority into Canadian law. Here again, there is a great contrast between Canadian political authorities’ reception of the same values, depending on whether they are put forward by Aboriginal peoples or by the Québécois. This makes us wonder, but we have to go beyond paranoia and see that the threshold of tolerance is the same in both cases: political power over the territory. However, since this concerns conceding a certain degree of power, preferably power that may be taken back, over an area that is otherwise subordinate, compromises are possible. Only it seems that compromises are easy to make with Aboriginal peoples, who have more catching up to do than the Québécois, who already have some autonomy within one of Canada’s provinces. differences between social and political minorities In short, all of the minorities studied base their claims on shared values, such as identity and equality, and ask for recognition of their identity, private compensation, and public funding. However, this is where the similarity ends. The differences between social and political minorities are major, and are inscribed partially in their claims and, to a lesser degree, in the values invoked. Social minorities demand recognition of identity and public funding in the name of essentially individual values. Political minorities demand control over land and political selfdetermination in the name of essentially collective values. The difference in the structure of their demands leads to an even greater contrast between the actions of the courts and political authorities with respect to these minorities, and also between political minorities themselves. Indeed, the courts are more reserved than the government: they recognize the identities of social and political minorities (aside from Que-

182 Andrée Lajoie

bec) and award private compensation, but not public funds. The courts’ compensations are only quid pro quo for land and political power, which are never acknowledged as belonging to the same object. Governments go further, especially with respect to social minorities, to which they sometimes grant public funding. Political minorities are treated differently. Aboriginal peoples have succeeded in obtaining partial political power over land that is nonetheless retained within the Canadian federation under the James Bay and Northern Quebec Agreement,39 Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada,40 and Nisga’a Final Accord,41 not to mention the more recent Quebec–Kahnawake agreements42 and Paix des Braves,43 which provide greater political recognition than any other agreements signed with Aboriginal peoples in the rest of Canada. Yet, the Québécois have obtained nothing from the federal legislator by political means. A Common Relation to Dominant Interests The overall picture that emerges of this parallel analysis is that of a guiding thread, or perhaps I should say ‘rope,’ running through each side in the same way and shedding light on a general feature of the negative relationship that the Canadian federal government has with both the provinces and Canada’s minorities. The ‘rope’ is woven from the twisted fibres of dominant interests. I say ‘dominant,’ not ‘majority,’ interests, although they can coincide. Such coincidence is not always the case, however, as we shall see when we identify who has benefited from (1) the centralization, not to say invasion, of the provinces’ jurisdiction and (2) the limits on integrating minority values into Canadian law. The Beneficiaries of Centralization The courts, through various interpretative theories, and the Executive, through the exercise of both valid and unconstitutional powers, have gradually centralized under federal jurisdiction competencies concerning land development and control of the Canadian economy, leading to federalization of the competencies necessary for NAFTA. Competencies essentially related to cultural reproduction, such as language, higher education, research, social services, and health care do not escape either. Clearly, this covers the list of powers necessary for political

Provinces and Minorities – Same Fight  183

domination, which was first exercised by the Canadian bourgeoisie that emerged out of colonization and wanted to maintain and amend over time the political and economic powers that it had received under the Constitution Act, 1867.44 The dominant control was later transferred, in accordance with neo-liberal globalization, to a broader group that now governs the economy of North America. Under these circumstances, is there any question that centralization was performed in the interest of these dominant groups? It is impossible not to see that the location of the barrier against which the provinces’ claims in general, and those of Quebec in particular, are pressed is at the border of the overriding economic and nationalist interests of these dominant groups. The Barrier to Integration of Minority Values Minorities are in no better a position than provinces, except that the interests they face are those of slightly different groups, particularly with respect to social minorities and especially with respect to gays and lesbians. Proof of this is in a comparison of the list of what they have been refused and of what could be against the dominant interests. The courts have refused gays and lesbians public funds and the ‘sacred cows,’ namely, the aspects of equality that contradict the symbolic inalienable values of homophobic heterosexuals. Women have also been refused public funds as well as aspects of equality related to work and, in the case of Aboriginal women, political activity. Is it possible to ignore the link between these refusals and the identity-related and economic interests of white heterosexual males? They may be a minority but they are dominant owing to their higher incomes and consequent greater contributions to public coffers in the form of taxes. Political minorities are denied political power and land, as well as competencies related to cultural reproduction, which are obviously among the non-transferable acquisitions and instruments indispensable for the exercise of power by the dominant groups. Conclusion Canadian federalism, as presented in this analysis, thus seems to be an effective tool for entrenching and promoting dominant values and interests with respect to both the provinces and Canada’s minority populations, or at least Canadian federalism does not shelter the latter from

184 Andrée Lajoie

actions by the former. How can this be reconciled with the conception that I have maintained in good faith until now of a constitutional architecture that is certainly imperfect but nonetheless intended to protect the groups and regions that it brings together? Are we not instead looking at a powerful ideological screen designed specifically to maintain the illusion from which I too did not escape? Would this not be all the more true if, as I have often heard, Canadian federalism is ‘the most decentralized in the world’? Of course, we could do worse, and the European Union is on the right track, but at least it is not hiding under the misleading word ‘federation,’ which it vehemently rejects, ironically believing that by so doing it will maintain the sovereignty of its components. Verification requires comparison with some unitary countries that are simply decentralized but consider that they have not crossed the threshold of federalism, for example, Great Britain, Spain, or Italy. Yet, even if this were to show that the Canadian federation provides slightly better protection for its minorities, we cannot escape the conclusion that law, or at least Canadian constitutional law, is overdetermined by the values of dominant groups, or to speak like the Marxists who are no longer in fashion these days, reflects ‘a snapshot of a relation of power.’ Notes   1 The first part of this text is a summary of previous work, in particular: Andrée Lajoie, Pierrette Mulazzi, and Michèle Gamache, ‘Les idées politiques au Québec et le droit constitutionnel canadien,’ in Andrée Lajoie and Ivan Bernier, eds., La Cour suprême du Canada comme agent de changement politique (Ottawa: Supply and Services Canada, 1986), 1, and Andrée Lajoie, ‘Il Québec e la costituzione canadese: Processo al federalisimo,’ in Nino Olivetti Rason, ed., L’Ordinamento costitutionale del Canada (Torino: Giappichelli Editore, 1997), 88.   2 Constitution Act, 1867, 30 & 31 Vict., UK., c. 3.   3 Liquidators of Maritime Bank v. Receiver General of New Brunswick, [1892] A.C. 437 (P.C.).   4 Reference re. Secession of Québec, [1998] 2 S.C.R. 217, par. 56 (the Court).   5 See André Tremblay, ‘Judicial Interpretation and the Canadian Constitution,’ National Journal of Constitutional Law 1 (1991–92): 163, which largely inspired this paragraph, with the author’s permission.   6 Cushing v. Dupuy, (1880) 5 A.C. 409 (P.C.).

Provinces and Minorities – Same Fight  185   7 A.G. Ontario v. A.G. Canada [1896] A.C. 348 (P.C.).   8 Banque de Montréal v. Hall, [1990] 1 S.C.R. 121.   9 John Deere Plow Co. v. Wharton, [1915] A.C. 330 (P.C.). 10 Russell v. The Queen., (1882) 7 A.C. 829 (P.C.). 11 R. v. Crown Zellerbach, [1988] 1 S.C.R. 401; Friends of the Oldman River v. Canada, [1972] 1 S.C.R. 3. 12 Fort Frances Pulp and Paper Co. v. Manitoba Free Press, [1923] A.C. 330 (P.C.). 13 François Chevrette and Herbert Marx, Droit constitutionnel (Montreal: Les presses de l’Université de Montréal, 1982), 389; our translation. 14 Ibid., 25. 15 Reference re. Secession of Québec, par. 55 (the Court). 16 Andrée Lajoie, Le pouvoir déclaratoire du Parlement, augmentation discrétionnaire de la compétence fédérale au Canada (Montreal: Les presses de l’Université de Montréal, 1969), 123 ff. 17 Ibid., 67 ff. 18 Report of the Commission on Fiscal Imbalance, Supporting document 2, ‘The Federal Spending Power’ (Quebec: Bibliothèque nationale du Québec, 2002). 19 For a detailed qualitative and quantitative analysis of the decisions involved in the narrative of this development (which have not been cited here for lack of space), see Lajoie et al., ‘Les idées politiques,’ and Lajoie, ‘Il Québec e la costituzione canadese.’ 20 This was the year Charter cases began arriving at the Court for final decision, after having worked their ways through lower courts. 21 A Framework to Improve the Social Union for Canadians, An agreement between the Government of Canada and the Governments of the Provinces and Territories, February 1999. 22 Alain Noël, ‘Étude générale sur l’entente,’ in Alain-G. Gagnon, ed., L’union sociale canadienne sans le Québec (Montreal: Saint-Martin, 2000). 23 ‘Les voies du droit’ Collection (Paris: Les presses Universitaires de France, 2001). 24 2004 SCC 79. 25 Vriend v. Alberta, [1998] 1 S.C.R. 493. 26 See MacDonald v. Ville de Montréal, [1986] 1 R.C.S. 460. 27 Reference re. Secession of Québec. 28 Vriend v. Alberta. See also Civil Marriage Act, S.C. 2005, c. 33 (rendering same-sex marriage legal in Canada). 29 Ibid. 30 S.M.C. v. N.C.J., (2001) N.S.S.F. 24 (N.S.S.C.). 31 L.R.C. (1985), c. I-5.

186 Andrée Lajoie 32 Entente concernant une nouvelle relation entre le gouvernement du Québec et les Cris du Québec, signed on 7 February 2002, available at http://www.autochtones.gouv.qc.ca/index.asp. 33 Signed on 15 Oct. 1998, available at http://www.autochtones.gouv.qc.ca/ index.asp. 34 Ibid. 35 Signed on 30 March 1999, available at http://www.autochtones.gouv. qc.ca/index.asp. 36 Confirmed by the First Nations Land Management Act, S.C. 1999, c. 24. 37 Nisga’a Final Agreement Act, S.C. 2000, c. 7. 38 Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, available on the Canadian Indian Affairs and Northern Development site (http://www.inac.gc.ca) and ratified by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29. 39 Signed on 11 Nov. 1975. 40 Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada. 41 Nisga’a Final Accord Act. 42 Sectoral agreements signed between Kahnawake and Quebec, see n34 supra. 43 Entente concernant une nouvelle relation entre le gouvernement du Québec et les Cris du Québec. 44 Constitution Act, 1867, 30 & 31 Vict., UK., c. 3.

6 On Not Finding Our Way: The Illusory Reform of the Canadian Federation michel seymour

The debate between sovereigntists and federalists in Quebec has been raging for nearly fifty years. To break the deadlock, both sides should be able to stand back from their doctrinaire and ideological positions. Sovereigntists should be able to say what would constitute an acceptable, reasonable, and honourable compromise for Quebec within the Canadian federation, and federalists should be able to recognize that a fallback position such as sovereignty with partnership is an appropriate option, considering that it has become impossible to reform the Canadian federation. The inability of each side to put itself in the shoes of the other and the gradual hardening of their respective positions have led to the present deadlock. Since 1995 I have had several opportunities to speak publicly in favour of Quebec sovereignty. Since that time, my position has never changed, but I have been increasingly led to clarify my thinking on the meaning that I attach to sovereignty. In the jargon of intellectual discussions on the subject, one would say I consider sovereignty as a means, not an end. The expression itself is ambiguous, however, since sovereignty can mean very different things. Sovereignty can be viewed as a means to carrying out a social plan or as a means to gain recognition for our national identity. I believe these two means are more and more intimately interrelated since our national identity is, in a way, shot through with considerations relating to a social democratic plan for society. To preserve the progressive nature of our society relative to what is the case in the United States and in the rest of Canada, we must defend the distinctive nature of Quebec’s national identity. In the present circumstances, that means, in particular, preserving the social democratic character of Quebec society.

188 Michel Seymour

Of course, a plan for a country must be distinguished from a social plan specific to a political party because a plan for a country is theoretically compatible with various social plans, but citizens, intellectual elites, and political parties must understand a national plan from the standpoint of a specific social plan. We always gain access to a plan for a country through the lens of a social plan. Significant consequences follow from the view that sovereignty is simultaneously a means to gaining international recognition and carrying out a social plan. Saying that sovereignty is one means to an end should lead to the conclusion that there are other possible means to achieving the same result. It might have been possible to consider formal recognition of our status as a people within Canada and, in principle, also possible to expand Quebec social democracy within Canada. In that perspective, criticism of federalism should become an essential part of the sovereigntist argument. When focusing on recognition of the Quebec nation and implementation of its social democratic plan for society, sovereignty becomes an inevitable option only if we are also able to show that recognition of Quebec and the preservation of social democratic gains have become impossible within Canada. Yet, those who see sovereignty as an end in itself, or as the only possible means to achieving their social plan, view matters quite differently. These people tend to push Canadian federalism completely off their radar screens. They feel Quebecers should stop relying on a nationalism based on resentment, a reactive nationalism, and that they should stop taking negative considerations as their basis for building sovereignty. They believe that those who constantly harp on the age‑old grievances against Canadian federalism view sovereignty as a makeshift measure, a last resort. A circumstantial alliance thus appeared possible between those individuals who view sovereignty as an end in itself and those who consider it to be the only way to achieving their social plan. These camps can join forces against those who consider sovereignty to be both one means among many for carrying out a social plan and for gaining recognition of our status as a people, and therefore against those who contemplate this option because of Canada’s historical inability to accommodate the Quebec people’s deeply felt aspirations. Some sovereigntists will advance the reasonable view that we should not only rely on the critique of federalism, but also sketch the outlines of a sovereign Quebec. This view would seem reasonable. In the present context, however, the new emphasis placed on the social plan

The Illusory Reform  189

often serves to conceal sovereigntists’ visceral inability to recognize that multinational federalism could just as easily have been an acceptable solution for Quebec. There is a strong temptation to focus solely on the positive aspects of the Parti Québécois’ social plan, especially because a number of Party members no longer want to have anything to do with Canada – because they have never wanted anything to do with multinational federalism. A strategic denunciation of Canadian federalism has always been maintained for the purpose of deterring those who believe in this kind of reform; it did not, however, proceed from the view that such a reform would have been acceptable. The shift from an argument based on the critique of federalism to an argument based on the positive outlines of a sovereign Quebec is said to be warranted because, in their view, federalism is no longer reformable in any case. Actually, this response is often a way of avoiding the visceral inability of those same persons to admit the value of that reform. The adherence of some to the sovereigntist plan is similar to a religious belief. It is based on a doctrinaire and ideological position, and every possible argument is made to conceal that fact. I am not opposed to the sovereigntist argument being enhanced by the positive reasons for sovereignty. However, I do believe that, once we are headed in that direction, the question will inevitably arise as to whether each of the specific objectives that sovereignty would help to achieve cannot be brought about within the Canadian framework. I am thinking, for example, of an objective such as Quebec’s effective participation in international bodies such as the World Trade Organization (WTO), the Free Trade Area of the Americas (FTAA), and the United Nations. The question thus arises as to whether it would not be possible to contemplate strict rules for joint action by the federal government and the provinces as a result of which Quebec’s voice would be heard at the WTO, as France’s is through representatives of the European Union. I am also thinking of greater control over our immigration policies, guaranteed greater independence with regard to our language policies, and control over telecommunications. Theoretically, powers in all those areas could be transferred from the federal government to Quebec. As for the continuation of our social democratic plan for society, it would be possible to consider a resolution of the fiscal imbalance resulting in a correction in transfers to the provinces and control granted to Quebec with regard to employment insurance. It would also be possible to grant Quebec a genuine right to opt out with financial compensation in order to avoid federal government encroachments in Quebec’s

190 Michel Seymour

areas of jurisdiction. In short, for each objective considered, there is a theoretically possible solution within the federal state. That is why the positive argument cannot be separated from the negative argument. Those who view sovereignty as an end in itself endorse one version or another of the principle of nationalities, under which every nation must have its own state. Those who subscribe to sovereignty as a means to a more general end, but who wish to avoid considering the federal alternative, can do so by claiming that there are no other possible means to achieve the same objectives. For John Stuart Mill, for example, a nation must have its own state, not as an end in itself, but to achieve the democratic ideal, and that ideal can only be achieved through the creation of a nation‑state. It cannot be achieved in the context of a multinational state. In Mill’s view, sovereignty is a means to an end, and it is the only possible means to that end; thus, no other model than the nation‑state should be contemplated for that purpose. Similarly, according to a number of sovereigntists, sovereignty is a means to achieve a plan for society, and it is the only means to that end. Consequently, the possibility of reforming federalism to suit these aspirations is out of the question. I disagree with many sovereigntist thinkers on this point. There is no reason to think that the multinational state is a fad or a theoretical construct. On the contrary, it is a practical necessity. There are 5,000 or so nationalities on this planet, and it is ridiculous to contemplate creating an additional 4,800 states or to assimilate 4,800 nations into the 200 that already have a state. Canada could have changed into a genuine multinational state. Those who believed in that ideal had a highly noble and avant‑garde vision. Federalist Quebecers, who have fought for a federalism based on two founding peoples, have not been mistaken or misled all along. Those who still believe in a federalism based on two founding peoples should be taken seriously. Only in that way will sovereigntists be listened to and their political choice heard. Otherwise, we will be condemned to mark time or go around in circles, which amounts to the same thing. I do not believe that I meet the description of a nationalist thinker who feels resentment towards English Canada. The Canadian problem can be described in a cold, lucid, and clinical manner without bringing moods into the picture. On the contrary, I believe that those who exclude Canada from their radar screens are precisely those who are full of resentment. Nor do I view sovereignty as a last resort. In my opinion, multinational federalism is the last resort. Sovereignty with partnership is a much better option for Quebec. However, I am enough of a

The Illusory Reform  191

pragmatist to consider a last‑resort solution that I would have accepted, had it been possible. My detractors will view this pragmatic approach as evidence that I believe federalism can still be reformed, that, ultimately, I ardently wish for a reformed Canada, or that I have a sentimental attachment to Canada. Once again, I am sorry to disappoint them: that is not the way things are. I no longer believe that Canadian federalism can be reformed, I have no secret wish for a reformed Canada, and I do not describe myself as a Canadian. I would only agree to be considered Canadian if Canada agreed to formally and not only verbally recognize the Quebec nation. Yet, if one no longer considers oneself Canadian and no longer believes that Canadian federalism can be reformed, why draw up a list of grievances about the Canadian experiment? Why still consider what a reformed Canada could have been? There are many answers to those questions. It is of the utmost importance that we not allow ourselves to be caricatured by our opponents as defending a doctrinaire and ideological view. The sovereigntist option is appealing, not for doctrinaire and ideological reasons, but rather in the context of the turn that Canadian history took when Pierre Elliott Trudeau entered it. It is also of the utmost importance to accompany those who mistakenly believe such reform is possible. The best way to convince undecided citizens is to follow them in their thinking. Sovereigntists constantly wonder how to convince the undecided, but apparently it never occurs to them to put themselves in the shoes of their fellow citizens who believe in, hope for, and want a reformed Canada. It is of the utmost importance to appropriate the legacy of previous generations and to adopt Quebec’s historical approach. It is important to recall Quebec’s major demands and to assert what would have been the strict acceptable minimum. It is also important not to cut ourselves off from the global federalism fad and not to be caught in a vision that categorically condemns all forms of federal systems. Globalization concerns ideas, not just economics. An open mind to issues discussed around the world should lead one to consider debates under way in Europe and elsewhere. Now more than ever, many firmly believe in the virtues of federalism. The complacency of some sovereigntists is therefore somewhat disarming. In Quebec the debate is seemingly being carried on in a vacuum, unaffected by the major global trends, in a kind of political micro‑climate. It is being carried on in the unshakable certainty that federalism in all its

192 Michel Seymour

forms is ancient history. This caricature, this hardened doctrinaire and ideological attitude is our worst enemy. In La nécessaire souveraineté,1 several hundred copies of which were published at the time of the 1995 referendum, in the context of my activities in Intellectuels pour la souveraineté (IPSO), I asserted that it would be possible for each reason put forward for sovereignty to be addressed within of the Canadian federal state. Thus, it was the failure to achieve reform consistent with Quebec’s historical aspirations that led me to support sovereignty. At the time, I had an opportunity to clarify my thinking on the question of sovereignty in articles that appeared in the newspapers.2 More recently, in L’action nationale, I published an article that essentially repeated the same arguments, while returning to a list of principles that I felt constituted an acceptable bottom line for Quebec.3 In short, I would have been in favour of a multinational federalist system. The idea was not to write a shopping list of the powers that should be restored to Quebec, but to establish the structural principles of such a reform. In Le Pari de la démesure and in the article in L’Action nationale, I even proposed that the Parti Québécois government pass another Bill 150 incorporating the idea of an alternative between two major options historically rooted in the heart of Quebecers: multinational federalism and sovereignty with partnership.4 I recall these elements of reform here because I will be using them below. Ultimately, the idea is to secure recognition of the Quebec people and to accept the institutional consequences of such recognition. More specifically, (1) the existence of a Quebec people should be formally recognized in Canada’s Constitution, (2) a legal special status should be formally conferred on Quebec, and (3) there should be agreement on entrenching a system of asymmetrical federalism in the Constitution. (4) Quebec should be granted a genuine right to opt out of federal transfer arrangements with financial compensation, and (5) the fiscal imbalance should be resolved through a transfer of the goods and services tax (GST). (6) Quebec should be recognized as the prime contractor in the areas of language, telecommunications, and immigration. (7) There should also be a transfer of employment insurance powers. (8) Quebec should be granted a power to take part in the appointment of three of the nine judges on the bench of the Supreme Court of Canada. (9) The formula proposed by Paul Gérin‑Lajoie in 1965 and according to which Quebec should behave as a sovereign state with other states for matters concerning their own provincial jurisdictions should be

The Illusory Reform  193

ratified in international relations and genuine cooperation should be introduced between Ottawa and the provinces of Canada in U.N., WTO, and FTAA negotiations. Lastly, (10) Quebec should have a veto on constitutional reform. With this set of reforms in place, the claim could be made that Canada has taken a strong step towards multinational federalism. These reform proposals are not recent inventions. Ultimately, they represent Quebec’s historical aspirations. I have not made them up for the purposes of an ad hoc argument. Recognition of the Quebec people is part of Quebec’s historical approach. Special status is a demand that dates back at least to the 1960s. Asymmetrical federalism was first referred to in the report of the Pepin–Robarts Commission in 1979. The right to opt out with financial compensation has been demanded for decades in Quebec. And so on and so forth. All of these demands have been made time and time again by federalist politicians. So, the idea is not to raise the bar too high for the strategic purpose of securing a rejection and provoking a crisis – it is just to be faithful to Quebec’s traditional demands. I have taken up these demands myself a number of times in recent years. In the present context of an apparent relaxing of federal–provincial relations, they provide me with a framework against which to assess suggestions for reform. Bottom-line structural principles also give me ammunition against those who would interpret the present situation in a favourable manner. I am not like those sovereigntists who no longer take any interest in constitutional debate in Canada and who claim that – because all reform is impossible – they should not have to question their doctrinaire positions. I am not caught off guard and powerless in the new situation of a minority Conservative government at the federal level. On the contrary, I have a tool that enables me to assess the meaning of the new reforms currently under way. Is Reform Now Possible? The currently prevailing atmosphere revives the hope that Canadian federalism is after all reformable, flexible, and adaptable to Quebec’s needs. On each of the points on my list of structural principles, changes have taken place in the past ten years or so that would appear to be grounds for optimism. In the months that followed the 1995 referendum, Canada passed a resolution in the House of Commons recognizing Quebec as a distinct

194 Michel Seymour

society.5 Moreover, former Senator Gérald Beaudoin suggested that Quebec was already recognized in Canada’s Constitution as having special status. We have also begun a process that could finally make a system of asymmetrical federalism a reality. The September 2004 Health Accord resulted in Quebec exercising a genuine right to opt out with financial compensation. We have reason to believe that the federal government showed that it was receptive to the provinces’ demands on the fiscal imbalance issue. We did have reason to hope for specific agreements on parental leave, participation in the appointment of three of the nine judges on the Supreme Court bench, and an expanded international role for Quebec, in accordance with Minister Benoît Pelletier’s wishes. In short, should we not recognize that we are headed in the direction of what I call the bottom line for Quebec? I want to show that appearances are deceiving. I contend that not only are we still very far from the reform contemplated, but also that we are moving even further away from it. To prove this, I will use each of the principles cited in my imaginary reform in the order in which I have stated them. Recognition of the Quebec People First of all, did Canada’s recognition of Quebec as a distinct society in 1995 constitute, for all practical purposes, a recognition of the Quebec people? Let us recall what that expression meant in the failed Meech Lake Accord. It was only a principle whereby the Quebec government would have an obligation to promote and protect the French language, in a manner consistent with bilingualism understood as ‘a fundamental characteristic of Canada.’6 In short, at most, the clause in the Meech Lake Accord recognizing Quebec as a distinct society had an impact on language but it was neutralized, to say the least, by the principle affirming the fundamental character of Canadian bilingualism, to the extent that the bilingualism principle would enable minorities to challenge Quebec’s language laws in the name of linguistic duality. Let us also recall that in 1995 Jean Chrétien toured across Canada to achieve some openness on the part of all the provinces to constitutional recognition of Quebec as a distinct society. The hostile reaction from most of the premiers led Chrétien to settle for a resolution in the House of Commons. Chrétien’s subsequent policies, however, confirmed the impression that the expression ‘Quebec is a distinct society’ was meaningless and of no consequence. On the contrary, the Ottawa government subsequently introduced a number of measures to undermine

The Illusory Reform  195

the strength of Quebec’s national identity, among them the following: the reference case of the Supreme Court on the secession of Quebec, the Clarity Act, the Social Union Framework Agreement (SUFA, 4 Feb. 1999), fiscal imbalance, encroachment on Quebec’s constitutional jurisdictions, the use of a so‑called spending power – not provided for in the Constitution, employment insurance cuts, contracting irregularities at the federal Department of Human Resources, propaganda on the CBC, and the sponsorship scandal. The Trudeauist conception of the Canadian nation is still alive, and more so than ever: one nation, two languages, five economic regions, thirteen provinces and territories, and a cultural mosaic. Moreover, the provinces of the rest of Canada have discarded any idea of constitutional reform and now consider themselves to be distinct societies as well. They are no doubt right to view matters in this way, but are they distinct peoples? Of course, they are not. Which is why this is not a debate over semantics. There is a major difference between recognition of a people and recognition of a distinct society. Most, if not all, of Canada’s provinces are distinct from one another, but only Quebec constitutes a distinct people, Newfoundland notwithstanding. Yet, the rest of Canada is further than ever from formally recognizing this fact. There was a time when some in anglophone Canada spoke favourably of the two founding peoples. In the view of most Canadians, that idea now belongs to the folklore of the pre‑Trudeau era, and the Trudeau era is now firmly rooted in Canadian attitudes. We also have every reason to believe that the recognition of the Quebec people by the Conservative government is merely a verbal one. Special Status Yet, apart from the merely verbal nature of recognition of the Quebec people, has the federal government not committed itself to institutional transformations consistent with those that would be demanded if Quebec were formally recognized as a people? What about special status for Quebec? By way of an answer, I take the liberty of recalling the plan for reform set out in the July 1992 version of the failed Charlottetown Accord.7 Nine Canadian provinces had agreed at the time to recognize a triple‑E Senate, that is, one that would be elected, effective, and equal. The principle of the legal equality of the ten provinces was unreservedly approved. Moreover, a few years later, on 14 September 1997, the nine provinces restated that principle in the Calgary Declaration.8 Closer to home, in the 2004 Health Accord side agreement,9 it was

196 Michel Seymour

agreed that the ten provinces could also invoke the principle of asymmetrical federalism. Once again, the provinces’ equality of legal status was affirmed. Recognizing special status for Quebec was out of the question. Although the principle of asymmetrical federalism has historically been associated with the idea of special status, Canadians now feel that the principle of asymmetry should be applied symmetrically in a manner consistent with the equality of the provinces. Senator Beaudoin reminded us that Quebec was in a way granted special status under the British North America Act, now called the Constitution Act, of 1867, in particular through recognition of a civil law system distinguishing Quebec from the rest of Canada,10 but this is not what is meant by a special juridical status for Quebec. I am not merely referring to an asymmetry in the juridical systems, but rather to the creation of a constitutionally entrenched interpretative clause that would serve as a general guideline in the application of any federal policy involving Quebec. The federal government could on the basis of such of an interpretative clause justify a regime of asymmetrical federalism for Quebec. Canada now no longer contemplates that original orientation, and it is the principle of equality of the provinces that is constantly affirmed. That is why it may be concluded that recognition of special status is now more improbable than ever. Asymmetrical Federalism Yet, can it not be said that, since September 2004, Canada has finally, for the first time, taken a deliberate step towards asymmetrical federalism? There was much talk about asymmetry in the fall of September 2004, although now that the Conservatives are in power, we do not hear much about it. Nevertheless, the expression was in vogue for a short time, and in the end, the expression has come to mean both one thing and its opposite. To my mind, asymmetrical federalism stems from the principle of special status for the Province of Quebec. In that sense, asymmetrical federalism has three basic characteristics: (1) it is entrenched in the Constitution and is therefore not just an agreement in principle; (2) it entails a transfer of powers from the federal state to the federated state and is not merely an absence of encroachment; and (3) it applies to Quebec, not to all of the provinces. One must admit that Canada’s present-day asymmetry – whose merits were praised for a short while – does not

The Illusory Reform  197

have these three characteristics. Canada’s current asymmetrical federalism amounts to an agreement in principle that, in the circumstances, only makes it possible to avoid any encroachment without any transfer of powers; moreover, it is an agreement that applies to all of the provinces. Yet, how is Quebec hurt if the other provinces are also entitled to invoke the asymmetry principle? The answer is quite simple. In the context of a symmetrical application of the principle of asymmetry, any transfer of powers may theoretically result in a weakening of the Canadian state. The federal government will thus be reluctant to grant a transfer of powers to Quebec if the power in question can also be recovered by any and all of the other provinces. The principle of asymmetry contemplated in the avowed goal of giving tangible expression to special status for Quebec would not achieve that result. The transfer of power to Quebec would be consistent with the maintenance of a strong federal state. Indeed, it would be consistent with anything Canadians in the rest of Canada wish to do. Of course, numerous forms of asymmetry are currently in operation in the Canadian federation. Some asymmetries are set out in the Constitution, others are not. Some apply to Quebec, and others apply to the other provinces. Some are favourable to Quebec, others more harm­ ful. However, we have every reason to be suspicious of these interim agreements that are not provided for in the Constitution and that can be revoked unilaterally, depending on the mood of the government in power and the prevailing political situation. Furthermore, although history shows that asymmetry has been applied to all the provinces of Canada to varying degrees, this is but another way of recognizing that Quebec does not have special status within the Canadian federation. Finally, it is hard to see why anyone should be pleased with the ‘asymmetry’ under which Quebec and Manitoba, in accordance with the 1867 Canadian Constitution and the 1870 Manitoba Act, which is part of the Constitution, are the only provinces that are required to translate their laws into the other official language, New Brunswick notwithstanding. The idea is not to deny that there are certain asymmetrical principles that apply solely to Quebec and are the result of a transfer of powers held by Quebec but not by the other provinces. I am thinking here of the Civil Code, the Quebec Pension Plan, Quebec’s power to collect a portion of income tax, and certain immigration powers. The question that arises is whether such transfers of power are still possible. For example, the principle of asymmetrical federalism embodied in the Sep-

198 Michel Seymour

tember 2004 Health Accord, which applies to all the provinces, does not augur well in that direction. The sole effect of that accord is to prevent jurisdictional encroachments, not to authorize a transfer of power. Lastly, we are far from any constitutional review. So, the idea that there could be a constitutional reform in which Quebec would be authorized to renegotiate a new distribution of powers is no longer in the cards. The definition of asymmetrical federalism set out in the press release of the federal and provincial governments heralding the 2004 Health Accord is, predictably, as vague as can be. This definition merely re­ veals a federalism that ‘allows for the existence of specific agreements for any province.’ Furthermore, it is hereby noted that this asymmetrical federalism is an administrative arrangement – not a constitutional principle – and that it applies to all of the provinces. But is asymmetrical federalism nothing but a means to prevent jurisdictional encroachment? To answer that question, one must consider the definition that appears in the press release prepared by the federal government and the Government of Quebec announcing the Health Accord, which cites a ‘flexible federalism that notably allows for the existence of specific agreements and arrangements adapted to Quebec’s specificity.’ This is another vague statement, but the title of the press release could not be more clear: ‘Asymmetrical Federalism that Respects Quebec’s Jurisdiction.’ We are therefore correct in interpreting the central government’s principle of asymmetrical federalism as an interim non-encroachment measure. This is far from a transfer of power entrenched in the Constitution and applicable only to Quebec. In the Accord, asymmetrical federalism is, at best, a recognition that has nothing to do with the Constitution, and applicable to all provinces, of a right to opt out with financial compensation when the federal government, through the use of its so-called spending power, decides to invade provincial jurisdictions. So it appears that no one can take a favourable view of entrenching in Canada’s Constitution a new division of powers that favours Quebec. Those who detect in this an openness to asymmetrical federalism understood as such by the Liberal Party of Canada must also recall that Paul Martin, Pierre Pettigrew, Lucienne Robillard, and Stéphane Dion, who were now praising the merits of this so-called asymmetrical federalism, resolutely used to support Jean Chrétien’s centralizing efforts. Their surprising new attitude was based on circumstances, and it may be explained in large part by the Bloc Québécois’ spectacular results in

The Illusory Reform  199

the 2003 federal election, since that was the main reason for the Liberals being able to form only a minority government. Some are often tempted to discard the sorts of arguments that I have just outlined because to them they amount to a defence of Quebec nationalism, while at the same time I appear to be criticizing Canadian nationalism. Thus, the following question could be raised: why not let the two nationalisms compete in winning the hearts of Quebecers? This, however, is to miss the true spirit of asymmetrical federalism completely, for it is precisely an arrangement seeking to harmonize Canadian nation-building policies with Quebec nationalism. True asymmetry means that Quebec itself determines Quebec’s identity and roles within an increasingly centralized federal Canadian government. By contrast, the so-called competition between the two nationalisms stems from a spurious attempt to crush Quebec nationalism, and we all know that this is bound to fail. A Right to Opt Out with Financial Compensation? The situation at present is even worse than that. To appreciate this, we must now consider how the right to opt out with financial compensation is understood. For example, can it not at least be said that, in the 2004 Health Accord, Quebec is granted a right to opt out with financial compensation in an area of its own jurisdiction, namely, health care? Let’s take a closer look. The Social Union Framework Agreement,11 which was adopted in 1999 without Quebec’s signature, states a very important rule governing transfer payments to the provinces: ‘A provincial/territorial government which, because of its existing programming, does not require the total transfer to fulfil the agreed objectives would be able to reinvest any funds not required for those objectives in the same or a related priority area.’12 It is important to understand what this means. It means that the federal government is entitled to determine in which directions provinces are to spend the money that they get from transfer payments. Now, there is a striking resemblance on this point between the 1999 Social Union Framework Agreement and the 2004 Health Accord. The Health Accord states: ‘The funding provided by the federal government will be used by the government of Québec to implement its own plan aiming, notably, at ensuring access to quality care in a timely manner and at reducing waiting times.’ The federal government’s press release ac-

200 Michel Seymour

companying announcement of the accord13 states: ‘Québec supports the overall objectives and general principles set out by the federal, provincial and territorial First Ministers in the communiqué of September 15, 2004, including the objectives of timely access to quality care and reduced wait times.’ Consequently, Quebec supports the principles and objectives of the Canadian provinces and federal government with regard to reduced waiting times in hospitals. In other words, Quebec can withdraw from the program and receive financial compensation because the same program has been put in place in Quebec by the Quebec government. It would appear from a careful reading of the Health Accord that Quebec has a right to opt out in a way similar to what is prescribed in the 1999 Social Union Framework Agreement. There thus arises a scenario that is quite different from the one reported in the media in September 2004. The Health Accord, which was presented as the consecration of asymmetrical federalism, instead enshrines the procedure triggered by the Social Union Framework Agreement. It enshrines the rule governing transfer payments by virtue of which the federal government is entitled to force provinces to spend the money it transfers to them in specific areas. The so‑called right to opt out – to which ‘asymmetrical federalism’ is now reduced – is nothing other than a false right to opt out, previously disparaged by Quebec and one that explains why it did not sign the 1999 agreement. The Health Accord of 15 September 2004 thus entrenches the false right, provided for in the Social Union Framework Agreement, to opt out. The only difference from the SUFA is that Quebec is now no longer dissenting. Moreover, those who see in the Health Accord a genuine right to opt out should tell us which of the two agreements in principle should prevail: the 1999 Social Union Framework Agreement or the Health Accord of 2004? As far as I know, the ministers did not agree to repeal the SUFA, and the problem of compatibility between the two agreements was not raised. This is therefore another reason to believe that the right to opt out granted to Quebec under the Health Accord is a false right to opt out, more consistent with what was provided under the Social Union Framework Agreement. Asymmetry is thus nothing more than a provisional non-encroachment clause that any province can invoke, provided that it acts in a manner consistent with federal normative goals. This is an ‘asymmetry’ that enables each province to opt out of a federal program, provided it has already implemented a similar program. The Health Accord does

The Illusory Reform  201

not represent true asymmetrical federalism, and it does not even involve a real opting out clause: it only involves the opting out clause in the SUFA that Quebec had rejected and that the Quebec Liberals have now accepted. So, far from being a step in the right direction, the Health Accord is a further step in a Canadian nation-building policy. It is not only that the previous asymmetry that enabled Quebec to receive transferred powers no longer exists. The Social Union Framework Agreement leads us further away than ever from recognition of a genuine right to opt out with financial compensation and conceals an unprecedented process of encroachment by the federal government. As for the Health Accord, it only spares Quebec because Quebec agreed to comply with the federal plan to reduce hospital waiting times, and it only exists because the federal Liberal government at the time was a minority government. Minister of Intergovernmental Affairs Benoît Pelletier has claimed that Quebec Liberals were able to strike a very good deal concerning the Health Accord, because they are able to use the money coming from the federal government in any way that they see fit, as opposed to the previous agreements reached between the Parti Québécois and the federal government concerning child care, for example. But the Parti Québécois fought against the Social Union Framework Agreement. Now the Quebec Liberals no longer raise any criticisms against the SUFA – worse, they comply with it completely. The question arises as to whether the federal government was being underhanded and hypocritical in leading us to believe that there had occurred a historic change in the situation consistent with Quebec’s aspirations, when it was, in fact, seeking to impose the Social Union Framework Agreement that Quebec had initially refused to ratify. Was the federal government being underhanded and hypocritical in suddenly appearing to be open to asymmetrical federalism, when that false stance was, in fact, being introduced in order to enhance the federal Liberal Party’s image in Quebec? Was the federal government being underhanded and hypocritical in tabling budgets that downplayed the actual surpluses of the Canadian government, while the Bloc Québécois was able to value them correctly year after year? Was the federal government being underhanded and hypocritical in officially praising the merits of federalism, but in missing no opportunity to promote Canadian nationalism? Was the federal government being underhanded and hypocritical in seeming to respect provincial jurisdictions while taking advantage of each opportunity to invade them shamelessly?

202 Michel Seymour

Was the federal government being underhanded and hypocritical in making Quebec the main victim of cuts in transfer payments? Was the federal government being underhanded and hypocritical in expressing outrage over the sponsorship scandal, when Paul Martin, Lucienne Robillard, Pierre Pettigrew, and Stéphane Dion resoundingly applauded Jean Chrétien every time he dismissed one of the Bloc Québécois’ 500 questions on the subject? As for another example of underhanded hypocrisy: in 1999 the federal government shouted from the rooftops that the $1.5 billion equalization repayment made to Quebec – two weeks before Quebec’s announcement that it had achieved a zero deficit – was what made that objective possible, whereas Quebec would have achieved a zero deficit even without federal money. What is worse, all this money served as a smokescreen to push through another measure that was harmful for Quebec, the accelerated reform of the program of provincial transfers calculated in proportion to population. That reform worked to Ontario’s benefit, which, in return, enabled the federal government to obtain the provinces’ support for the Social Union Framework Agreement. One has the impression of witnessing a similar subterfuge with regard to the Health Accord. In it, the federal government praises the merits of asymmetrical federalism, but in fact slips in the SUFA, which Quebec had rejected five years earlier. Fiscal Imbalance Fiscal imbalance means that the federal government benefits from fiscal revenues that are way beyond its constitutional areas of jurisdiction, while the provinces have access to a smaller portion of fiscal revenues despite the fact that they have to deal with increasing costs related to their many constitutional responsibilities. Yet, are we not at least witnessing a genuine will on the part of the federal government to solve the problem of the fiscal imbalance? For the problem to be solved, it first has to be recognized. Despite the unanimous view of Quebec’s three political parties, all ten Canadian provinces, the Séguin Commission,14 and the Conference Board of Canada,15 the government of the Liberal Party of Canada denied the existence of a fiscal imbalance. Paul Martin referred, instead, to ‘financial pressures felt by the provinces’ and contended that he did not want to engage in a debate on terminology. If he did not want a debate on terminology, Martin should have adopted the universally accepted terminology. In refusing to do so, he showed that he was, indeed, engaging

The Illusory Reform  203

in a debate on terminology. However, his reluctance to use the expression ‘fiscal imbalance’ was, in fact, a reluctance to recognize the reality of fiscal imbalance. Of course, the Conservatives promised that they would resolve the fiscal imbalance, but as soon as they came to power, they began to downplay its importance. Did we not at least achieve a truly unanimous agreement between all ten provinces that promises to change the attitude of the federal government on this issue? We now see what such a unanimity has come to. There are deep disagreements between the provinces on how to resolve the fiscal imbalance. First, a true and lasting solution to vertical fiscal imbalance between the federal government and the provinces requires fiscal transfers from the former to the latter. The provinces must have more fiscal room to manoeuvre and thus must have a bigger portion of the fiscal pie, while the federal government must have a lesser portion. However, 1 per cent of tax point transfer means a lot more money for richer provinces and much less for poorer provinces. So, a reform must also be provided to solve the horizontal fiscal imbalance, the one that takes place between the provinces. This means that we must reform the method of transferring equalization payments. Revenues coming from natural resources must be counted in, and all ten provinces must be included in the calculations. The leaders of Ontario and Alberta disagree with this approach. They either oppose a reform of equalization or argue that the horizontal fiscal imbalance goes precisely the other way around. They have the impression that they are giving away much more than they are getting from their participation in the federation. This disagreement among the provinces leaves the federal government with all the political leverage that it needs to impose its own solution to the problem. The suggestion to transfer all the surpluses beyond $3 billion (these must serve to pay back the debt) to the provinces is perfectly compatible with a centralized federal government that is encroaching on provincial jurisdictions and spending like crazy in order to enhance its own visibility, especially in Quebec. The failure of the provinces to maintain a common approach on the issue of fiscal imbalance was from the very beginning easy to predict. Here I anticipate the next section. As we shall see, in the Social Union Framework Agreement, all of the provinces except Quebec agreed that the federal government is entitled to use its so-called spending power as much as it wants to. The Canadian government must therefore have fiscal resources in addition to those it is granted under Canada’s Constitution. If the Canadian government’s right to encroach on provincial jurisdictions is recognized, it can then be legitimately claimed that it

204 Michel Seymour

needs additional fiscal flexibility because its needs now to extend its spending power far beyond its own areas of jurisdiction. Without such additional resources, the federal government will be unable to address health care, the family, cities, and education. Recall the definition of fiscal imbalance; fiscal imbalance is the fact that the federal government benefits from fiscal revenues that are way beyond its constitutional areas of jurisdiction. The fiscal imbalance exists only if the constitutional jurisdictions of the federal and provincial governments are taken into account and respected. If the constitutional division of powers cannot be relied on, then it is hard to conclude that such an imbalance in fact exists. The federal government’s approach is thus perfectly coherent. The provinces that denounce fiscal imbalance but signed the Social Union Framework Agreement are clearly acting inconsistently. There was therefore every reason to predict that the provincial consensus would break down over the fiscal imbalance issue. The consensus on that point was entirely provisional. This looks very much like déjà vu all over again: a consensus reached between the provinces that breaks down and leaves Quebec all alone fighting against a nationalist federal government. One could recall the unilateral patriation of the Constitution that was once opposed by the provinces, the Meech Lake Accord that was once a matter on which all of the provinces would agree, or the common front of the provinces over a true opting out clause with financial compensation – just before their capitulation in favour of the Social Union Framework Agreement. Now, the unanimous common front of the provinces breaks down over the issue of fiscal imbalance. For a while, it looks as though Quebec is not alone in wanting to reform the federation and oppose strong centralization. But on each and every issue, it loses the support of the provinces, because in spite of their profound divergences, all of the other provinces are united on and engaged in the project of Canadian nation-building. The dissolution of the consensus over fiscal imbalance is just another instance of the underhanded and hypocritical manner in which the federal government and the nine provinces have made Quebec swallow a number of bitter pills, only one at a time: consider unilateral patriation of the Constitution, the Meech Lake Accord, the Social Union Framework Agreement, and the fiscal imbalance issue. The Canadian federal government’s nationalist centralizing efforts must be served out in small doses. An understanding of fiscal imbalance helps in grasping the nationalist logic of the federal government. As Tom Courchesne emphasizes,

The Illusory Reform  205

the federal government has discovered that the key to its electoral appeal and ‘nation-building’ policy in a knowledge-based economy is to become a player in provincial spheres of jurisdiction. This has taken the form of hourglass federalism: starving the provinces so that they have to divert discretionary spending from all other sectors in order to feed the voracious appetite of the health care system, to the point where citizens and cities now welcome some and even all federal expenditures made for them. Hourglass federalism is not only another name for vertical fiscal imbalance, but also one for fiscal imbalance with a goal.16 This was true of the Liberal Party of Canada, and it is also true of the Conservatives. However, the Conservatives might just want to adopt a softer pace in order to neutralize the growing support in favour of sovereignty within Quebec. The Social Union Framework Agreement and the fiscal imbalance are the federal government’s two most recent instruments for consolidating its control over the provinces. The Canadian state is increasingly losing the characteristics of federalism and increasingly acquiring those of nationalism. Provincial autonomy is built on two basic pillars: political autonomy and fiscal autonomy. However, the SUFA attacks the provinces’ political autonomy and the fiscal imbalance undermines their fiscal autonomy. In other words, the fiscal imbalance is a recent invention of the federal government, which, combined with the Social Union Framework Agreement, provides the necessary ammunition to encroach on the provinces’ jurisdictions as never before in the history of Canada. As a result, we are further away than ever from putting a limit on the central government’s spending power. Spending Power and Jurisdictional Encroachment What is worse, under the Social Union Framework Agreement, nine of Canada’s ten provinces have formally authorized the Canadian government to encroach on their jurisdictions. They have done so not only in the above sense, by allowing the federal government to impose norms on the way to spend the money coming from federal transfer payments. For the first time in Canadian history, they have also allowed the Canadian government to invade exclusive provincial jurisdictions with federal programs involving direct transfers to individuals. The Canadian government has the right to proceed in such a fashion as long as it informs the provinces in advance that it is about to do so. This is an unprecedented recognition of the federal government’s spending

206 Michel Seymour

power by nine of the provinces. The SUFA enshrines a principle ratified by nine Canadian provinces that authorizes the federal government’s spending power and accepts the federal government’s encroachment on provincial jurisdictions. This is yet another instance of an underhanded hypocritical nation-building policy. Those who are hopeful that changes will take place should ask themselves the following questions: has the Canadian government waived its spending power? Does it admit that the so‑called spending power does not really exist in Canada’s Constitution? No one can claim that the Canadian government is about to waive its spending power. The Canadian government still claims that the spending power is set out in the Constitution. Moreover, does the federal government intend to stop encroaching on Quebec’s jurisdictions? On this point, we should not seek to attribute to others aims that they have not expressly stated. Let’s look solely at the intentions Paul Martin expressed in the Speech from the Throne in early October 2004.17 The Canadian government’s stated priorities were health care, education, the family, and cities. These are all provincial jurisdictions. For the federal government to state that these are its priorities would have been unthinkable several years ago. Far from being inclined to limit its so‑called spending power and to stop encroaching on provincial jurisdictions, the federal government should, on the contrary, recognize that it is encroaching on provincial jurisdictions now more than ever in the history of Canada. As I showed in articles that were published in Le Devoir,18 this trend can even be felt in the university research sector. The federal government is financing research in Canadian universities approximately at the level of more than $2 billion each year.19 The vice-president for research at Université de Montréal, Alain Caillé, subsequently answered that my criticisms made ‘no sense’ – since researchers accept all federal subsidies.20 It is interesting to note that the vice-president could not deny the federal government’s encroachment on provincial jurisdictions, its use of the spending power, the fiscal imbalance, or the Canadian government’s increased presence in university research. He could not deny that these interventions are part of a Canadian nation-building policy. His fallback position was merely that researchers accept this state of affairs. The Conservative Government of Stephen Harper The above arguments do not take into consideration the spirit of reform

The Illusory Reform  207

opened up by the Conservative government of Stephen Harper. Can we be optimistic about that? One cannot deny that the Conservatives have recognized the existence of a Quebec nation. But the other side of the coin is that this recognition has been merely verbal, with no implications whatsoever regarding Canada’s Constitution and institutions. Moreover, the statement was that the ‘Québécois’ form a nation, using the French word in the English text, and this seems to suggest that the Quebec nation is composed of French Quebecers only. When pressed on this issue, Prime Minister Harper said that it was for Quebecers themselves to decide who should count as members of the Quebec nation. This was a shrewd way of escaping the question, since everybody interpreted this as suggesting that, if a majority of Quebecers were favourable to an inclusive conception of the nation, this conception would prevail and would be the one to adopt. Nevertheless, one could imagine that Stephen Harper could react positively to those English Quebecers who would wish to exclude themselves from the Quebec people, since this too could be a way to consider what Quebecers themselves really think about the issue. In my opinion, it would be legitimate for Anglo-Quebecers to exclude themselves if Quebec was unwilling to recognize their minority rights. Without such recognition, the inclusive concept of the Quebec nation would not be legitimate. If, however, Quebec recognizes its own minorities, then the self-exclusion of anglophones from the inclusive Quebec nation becomes illegitimate. As far as Quebec’s international role is concerned, the cloud of expectations finally condensed into a drop of administrative reform. The traditional role of Quebec at UNESCO was, in a way, officially confirmed. The two levels of government tried to make a big fuss out of this issue, but the celebrations did not conceal the meagre result. Once again, the two levels of government made use of very big words like asymmetrical federalism to describe the implications of the agreement, but the emptiness of those words in the context was a direct a reflection of the total lack of substance involved. Yet, is it not true that the Conservatives have put an end to the fiscal imbalance? Once again, this is an abusive way of describing what has actually taken place. The Conservatives did give an additional amount of $1 billion to the Quebec government in equalization payments. However, the fiscal imbalance should have meant a correction reaching $3.9 billion, not $1 billion. The other important thing to notice is that the Conservatives were able, at the same time, to reduce taxes and

208 Michel Seymour

reduce part of the debt. If anything, the gesture of the Harper government concerning equalization payments is not a resolution of the fiscal imbalance; rather, it is an expression of fiscal imbalance. The Quebec provincial Liberals also made the mistake of using this additional $1 billion to reduce income tax, in order to finally be able to partly fulfil one of their failing promises. This infuriated many Canadians, and it now seems politically impossible for Quebec to raise once again the issue of fiscal imbalance in Canada. Strangely enough, even though all of the provinces had initially agreed that there is a fiscal imbalance, no one in Canada has raised the issue since then. Nevertheless, it is bound to remain a fiscal reality in the years to come, and it will surely prove a crucial dysfunctional factor in the federation as far as Quebec is concerned. Yet, can we not at least expect that the Conservatives will stop invading provincial jurisdictions? As far as one can tell, no one in the Conservative government has suggested that the Social Union Framework Agreement should be repealed. True, the Conservative government has announced that it wants to impose important limitations on the use of the so-called federal spending power. It appears, however, that these ‘limitations’ would concern only shared-cost programs, and it is a well-known fact that the intrusion of the federal government into provincial jurisdictions nowadays takes the shape of programs exclusively financed by the central state. These so-called limitations would thus amount to no limitations at all. Am I not being a bit unfair? Why should we be so severe concerning the Conservative policies towards Quebec? Can we seriously deny that the decentralization of the federation would be a benefit to Quebec? The problem is that, like all other Canadian governments before them, the Conservatives do not want to grant special status to the Province of Quebec, and they refuse to accept a substantial form of asymmetrical federalism. Any additional powers given to Quebec must be offered to all members of the federation. The only way to transfer some additional room to manoeuvre to Quebec is to allow a substantive decentralization process. There are many problems connected with this solution. It would require that all Canadians accept decentralization, and since nine provincial governments have signed the Social Union Framework Agreement, it can be expected that most of them would be reluctant to see a massive decentralization of powers. Furthermore, the federal government will hesitate to accommodate Quebec concerning certain powers like language and culture were this to mean that language and

The Illusory Reform  209

culture would become exclusively provincial jurisdictions. Offering something to Quebec would thus be tantamount to an abandonment of the jurisdiction altogether, and this would reduce the list of powers that the federal government would be willing to give away. In short, as a solution to the Quebec question, the Conservative program of decentralization is just another manifestation of reluctance to do more than verbally recognize Quebec as a nation. A Short Shopping List? Should we perhaps be optimistic, like Minister Benoît Pelletier, after coming to an agreement on parental leave?21 Unfortunately, despite an absolute consensus among all groups within Quebec society, it took more than eight years to finally be able to strike a deal on a Quebec program on parental leave that is distinct from the one applied all over the country. Yet, if agreements were reached on many other fronts like this one, would we not have to recognize that a breakthrough is possible? On the contrary, I am inclined to distrust these occasional overtures regarding specific powers. Here we see the rising threat of a proposed reform taking the shape of a shopping list that only includes specific administrative powers, instead of reform based on substantive, structural, and constitutionally entrenched principles. Why save a few trees if you lose the forest? I believe that I have established that the Canadian government is now more committed than ever to a nation-building process, which has taken the form of encroaching on provincial jurisdictions and abusive use of the spending power consistent with the fiscal imbalance. Total encroachment on provincial jurisdictions can thus allow for the few minor powers conceded to Quebec. However, this will only serve as a guarantee for a systematic nation-building enterprise subordinating federalism to Canadian nationalism. A Poor Way to Negotiate? Perhaps, as Christian Dufour noted22 in response to Claude Morin’s reform proposal,23 the problem is that I am adopting a ‘French approach,’ which results in a desire to achieve a comprehensive, written, and constitutionally entrenched solution – including a list of structural principles. The error, as Dufour emphasizes, may be in adopting a

210 Michel Seymour

‘French-style’ negotiation procedure instead of accepting the ‘English method’ of small informal steps based on mutual trust. I do not know whether two negotiating methods can be so easily compared in this way by calling them respectively the ‘French method’ and the ‘English method.’ But supposing that they can be described in this manner, this argument is curious nevertheless. For the purpose of gaining acceptance for substantive principles of recognition of a French-language people by an English-language community, should a French-style negotiating procedure be waived in favour of an English procedure? How can anyone hope that capitulating on procedural matters will enable us to get what we want in the area of substantive principles? In any case, the so‑called English bargaining procedure has already shown itself in its true light. The federal government is desperately seeking to make us accept Canada’s nationalist orientation by pretending to move us a few steps forward towards a reform. The small-steps strategy is, in fact, an application of Zeno’s paradox. At every step, we are told that the remaining distance to a reform of federalism has been cut by half; however, everyone knows that, at this rate – despite appearances – a reform of federalism will never come. Conclusion In summary, we are now further than ever from an in‑depth reform of the Canadian federation consistent with Quebec’s historical aspirations because Canada is more than ever committed to a nation-building enterprise and driven more than ever by nationalism. In the introduction, I criticized doctrinaire sovereigntists who do not wish to express their openness to a bottom line, but I would also criticize doctrinaire federalists who, in Quebec, cannot admit a fallback position. In view of the failure of federalism in Canada and of the subordination of federalism to Canadian nationalism, a pragmatic federalist must consider alternatives such as sovereignty with partnership. Notes   1 La nécessaire souveraineté: Dix arguments pour le Québec, prepared by Intellectuels pour la souveraineté (IPSO), printed by the Comité national du OUI for Michel Hébert, official agent of the Comité national du OUI, September 1995.

The Illusory Reform  211   2 ‘Que faire maintenant?’ Le Devoir (9 Feb. 1999), A7; ‘Le problème de la nation québécoise n’est pas son existence mais sa (non) reconnaissance,’ Le Devoir (11 Sept. 1999), A9; ‘Quebec and Canada at the Crossroads: A Nation within a Nation,’ Nations and Nationalism 6/2 (2000): 227–55; ‘Il ne faut pas tenter de guérir une hypothétique peur de la défaite,’ Le Devoir (4 March 2000), A9; ‘Politique québécoise – Pour sortir du cul‑de‑sac,’ Le Devoir (19 June 2002); ‘Une voie pragmatique et raisonnable,’ Le Devoir (2 Sept. 2003).   3 ‘Quel avenir pour le Québec?’ L’action nationale 93/5&6 (2003), 166–95.   4 Le Pari de la démesure: L’intransigeance canadienne face au Québec (Montreal: l’Hexagone, 2001), see chapter 7.   5 Brian O’Neal, Distinct Society: Origins, Interpretations, Implications. Political and Social Affairs Division, Dec. 1995. Library of Parliament. URL accessed 2 Feb. 2006.   6 See clause 2(1)(a) in The Meech Lake Accord. Available at http://www. thecanadianencyclopedia.com.   7 See http://www.pco‑bcp.gc.ca/aia/default.asp?Language=F&Page=consf ile&doc=charlottetwn_e.htm.   8 See http://www.uni.ca/calgary_e.html. The second principle states: ‘All provinces, while diverse in their characteristics, have equality of status.’   9 See http://www.hc‑sc.gc.ca/english/hca2003/fmm/index.html. 10 Gérald-A. Beaudoin, ‘Nouveau, le fédéralisme asymétrique?’Le Devoir (28 Sept. 2004). 11 Alain‑G. Gagnon, ed., L’Union sociale canadienne sans le Québec (Montreal: Saint‑Martin, 2000), 263–70. 12 Ibid., 268. 13 Jean Charest and Paul Martin, ‘Un fédéralisme asymétrique qui respecte les compétences du Québec,’ Le Devoir (17 Sept. 2004), A9. 14 See http://www.desequilibrefiscal.gouv.qc.ca/fr/document/publication. htm. 15 Projection des équilibres financiers des gouvernements du Canada et du Québec, Conference Board of Canada (Feb. 2002), available at http://www.conferenceboard.ca/documents.asp?rnext=659. 16 Cited and translated by Manon Cornellier, ‘Il y a déséquilibre et déséquilibre,’ Le Devoir, (22 Sept. 2004), A3. 17 See http://pm.gc.ca/eng/sft‑ddt.asp. 18 ‘Le déséquilibre fiscal et la recherche universitaire au Québec,’ Le Devoir (9 July 2004), A9. 19 See (with Guy Rocher), ‘L’État canadien dans les universités québécoises: existe-t-il un pouvoir fédéral de dépenser?’ Le Devoir (20 April 2006); ‘L’État canadien dans les universités québécoises: pour sortir de l’impasse,’ Le Devoir (21 April 2006).

212 Michel Seymour 20 Marilyse Hamelin, ‘Cherche financement désespérément!’ Le Devoir (2 and 3 Oct. 2004), H4. 21 Benoît Pelletier, ‘Fédéralisme asymétrique – L’avenir du Québec au sein de la fédération canadienne,’ Le Devoir (2 and 3Oct. 2004). 22 Christian Dufour, ‘Plus qu’un simple accord administratif,’ Le Devoir (1 Oct. 2004). 23 Claude Morin, ‘Le fédéralisme asymétrique – Comme si rien du genre n’existait déjà!’ Le Devoir (28 Sept. 2004).

7 Conflicting National Identities and Federalism: A Quebec Perspective on the Change Occurring in Canada’s Political System joseph facal

I argue here that the players controlling Canada’s central government, struggling with the dual challenge of adapting the Canadian state to globalization and preventing the secession of Quebec, have in recent years implemented a strategy to radically reconfigure the Canadian political system. This strategy is leading to a probably irreversible decline in the spirit, principles, and practices of Canadian federalism, and the emergence of an increasingly unitary political system organized around a dominant central government. Changes in the social demographic and identity of Canada outside Quebec have not only made the introduction of this strategy easier, they also make it unlikely that the current Conservative government could – assuming it wanted to – reverse this development. The Clash of Collective Identities Globalization implies that states now compete with each other to offer the conditions most favourable to economic development. As it happens, many of the components essential to constructing a Canada that will be more competitive, results-oriented, and better adapted to this new context – areas like education, health care, and social services – fall under the constitutional jurisdiction of the provinces. The central government, therefore, has set out to acquire a strategic and visible role in these areas outside its jurisdiction, while avoiding the risk of embarking on the mine-strewn path of constitutional reform that would redefine how powers are shared. The construction of a new Canada around a strong central government has also had the effect of heightening historical tensions between

214  Joseph Facal

Canadian nationalism and Quebec nationalism going back to the birth of the Canadian Confederation. It is, in fact, the clash of two visions, shaped by two nations whose political paths have been informed by two equally sound but fundamentally opposed readings of Canada’s past and future and the meaning of the Canadian experience. The vision of Canada that holds greatest sway in Quebec derives from the fact that Quebecers comprise the only collectivity on the North American continent where French speakers are in the majority and have a clearly defined land base, from the fact that Quebec was aware of having a distinct identity even before Canada was created, and from the fact that it joined Canada based on what it perceived to be a pact between founding peoples, French- and English-speaking. For most francophones, this 1867 partnership established a federal system in which each of the two orders of government would be sovereign in its respective areas of competence, an arrangement that was supposed to give them the flexibility and powers necessary to safeguard their identity. Historically, Quebec’s vision of Canadian federalism has involved a quest for increased political autonomy based on the idea that it has unique responsibilities tied to this particular identity, a quest that has taken various forms depending on the era and the government in power.1 The vision that predominates in English-speaking Canada, introduced and imposed by Pierre Elliott Trudeau, is based on the idea that Canada comprises a single nation, officially bilingual and multicultural, alongside the Aboriginal peoples. This vision confers a dominant role on the central government, formally establishes the equal status of provinces and a symmetrical framework for dealing with them, and gives judges – thanks to the Canadian Charter of Rights and Freedoms enshrined in the Constitution, which does not recognize the notion of collective rights for other than Aboriginal peoples – the power to strike down provincial laws and set up centralizing legal precedents. By definition, therefore, the principle of provincial equality excludes the very idea of any status or powers specific to Quebec, since the rest of Canada would perceive those as preferential treatment.2 Judging by the evidence, the high point of the clash between these two fundamentally incompatible visions came in the 1995 referendum. In the days following the extraordinarily close vote, in which as many Quebecers said yes, and as there were inhabitants in Manitoba, Saskatchewan, Newfoundland, Nova Scotia, and Prince Edward Island, many of them expected the central government to try to respond con-

Conflicting Identities and Federalism: A Quebec Perspective  215

structively to their expression of such a profound desire for change. But English Canada’s demonstrations of love for Quebec quickly changed to anger and calls for a hard-line response, with almost no one asking seriously and publicly about the deeper reasons that the idea of Quebec sovereignty had such support. Instead, there followed a series of measures, introduced by the central government and linked by implacable group logic, designed to concentrate power in Ottawa and reduce provincial autonomy with a view to simultaneously containing the sovereignist movement and reconfiguring Canada for the new global context. From Now On, Three Targets Since the days following the 1995 referendum, the offensive led by Jean Chrétien’s and then Paul Martin’s Liberal governments against Quebec has targeted three areas: Quebec’s capacity to make societal choices that are different from those in the rest of Canada; Quebec’s capacity to independently assert its distinct identity; and Quebec’s capacity to freely decide its own political future. Let us examine these in turn. By unilaterally cutting transfer payments to the provinces, appropriating overpayments in the employment insurance coffers, maintaining the de-indexation of tax rates introduced in 1993, and taking advantage of a strong economy that added to its revenues, the central government first eliminated the deficit and then accumulated mind-boggling surpluses. But rather than cut taxes, in 1997 it launched a wide range of programs in areas under provincial jurisdiction, gradually chipping away at their autonomy. Claiming it was acting for the benefit of all Canadians, and pointing to the benefits of collaboration and the new imperatives of globalization, the central government acted as though the constitutional sharing of powers no longer existed and sought the maximum its visibility and influence in citizens’ lives. It rolled out a foolproof assault on Quebec’s areas of competence in its choice of both targets and means. It specifically went after cutting-edge sectors in the new economy such as academic research, key political groups such as youth, women, and middle-class families, and areas of daily life where most citizens were affected such as health care. This rapid centralization has been made easier by a planned imbalance in taxation. The central government levies more taxes than are allowed under its constitutional powers; provincial governments,

216  Joseph Facal

meanwhile, with the exception of Alberta, have fewer resources but are responsible for sectors in which costs are soaring such as health care – when they are already vulnerable owing to the cuts in federal transfer payments. For the central government, then, the question has become how to widen the gap between the fiscal resources of the two levels of government and their respective constitutional responsibilities. By taking over responsibility for spending that carries the fewest risks, and leaving the provinces with responsibility for spending that is more likely to fluctuate with the economy – in particular, by limiting eligibility for employment insurance, which has the effect of inflating the number of people on welfare, a provincial responsibility, when a recession hits – and by a draconian slashing of transfer payments to the provinces only to raise them again by a small fraction on the eve of each federal election, the central government has deliberately increased a fiscal imbalance that automatically gives it more room to manoeuvre than the provinces enjoy. Having brought the provinces to their knees, the central government is then perfectly positioned to unilaterally launch new programs in provincial areas of jurisdiction, or to impose conditions in exchange for reinvestment. Once the provinces have been put in this situation of chronic dependency, the central government looks for ways it can become indispensable, using its spending power in areas of provincial competence not specifically laid out in the Canadian Constitution, but which federal courts have largely interpreted in its favour in recent years.3 The current situation goes against one of the most basic principles of classic federalism, which is that each order of government must have the financial resources that it needs to exercise its constitutional responsibilities, unhampered by any mechanism at the budget level that subordinates one level of government expressly responsible for an area of competence to another level of government not responsible for it. In his classic work, Kenneth C. Wheare expressed this idea as follows: ‘The federal principle requires that the general and regional governments of a country shall be independent each of the other within its sphere, shall not be subordinate one to another but coordinate with each other. Now if this principle is to operate not merely as a matter of strict law but also in practice, it follows that both general and regional governments must each have under its own independent control financial resources sufficient to perform its exclusive functions.’4 As for the federal strategy designed to waylay Quebec’s distinct cultural identity, it too has several components. In the name of a multicul-

Conflicting Identities and Federalism: A Quebec Perspective  217

turalism policy that has all the appearances of generosity and openness, the central government claims to recognize all forms of belonging, including therefore the sense of belonging to a Quebec identity. It is out of the question, however, that it should extend this recognition to the collective dimension of Quebec’s identity or give it any kind of institutional power that would have political import. As proof, we need look no further than the complete refusal in Canada’s constitutional framework to recognize that the Quebec collectivity has all the attributes of a nation, its inability to allow the recognition of Quebec’s distinct identity to have any practical impact whatsoever, and its continued efforts to neutralize Quebec’s self-affirmation on the international stage. To try to convince Quebecers that this was all to the good and that they should be grateful for it, the central government sent them an enormous Canadian identity propaganda campaign, which ended in one of the biggest political scandals in Canadian history. Ottawa has been trying to make Quebec a province whose differences will be limited to the sphere of folklore with no more real autonomy than any other province, and to confine it within its own borders, thus leaving only the faintest hope that a Quebec that declared itself sovereign would be recognized on the international stage. But even that was not enough. The central government had a third target, and it intended to go even further and hit even harder, striking at the core of Quebecers’ ability to decide their political future without interference. Federal strategists knew that Quebecers’ growing confidence in their ability to manage their own affairs was making them increasingly immune to economic fears, so they began to raise the spectre, once considered shaky at best, that Quebec’s territory would be divided should it attain sovereignty. If Canada is divisible, they said, then so is Quebec. In law, such a claim is false. Before sovereignty, including during the transition period that would follow a referendum, Quebec’s territorial integrity would be guaranteed by the Canadian Constitution, which says that the boundaries of a province may not be modified without that province’s consent. After sovereignty, this integrity would be guaranteed by a principle well-established in international law, the uti possidetis juris, which has been applied to the letter in all recent cases of states attaining sovereignty, and which Canada itself formally reiterated in the early 1990s during the dissolution of Yugoslavia. But for a central government accused of political sleepwalking dur-

218  Joseph Facal

ing the 1995 referendum campaign, and which swore that nothing similar could ever happen again, things had to be moved up a notch. After hamstringing the budget, intruding in jurisdictional areas, applying a diplomatic straitjacket, and supporting partitionists, the central government planned a final blow to Quebec independence. In a move unprecedented in a modern democracy, Ottawa passed Bill C-20, which, under the pretence of translating the Supreme Court of Canada’sruling of August 1998 into law, grotesquely distorted it in an attempt to impose what the judges had refused to grant. This, in addition to flouting the basic democratic rule that says a clear majority of votes, 50 per cent plus one, is the legal threshold that distinguishes victory from defeat, which has been applied in almost every recent case of referendum-style consultation on changes to political status around the world. Must we remind Ottawa that nowhere in its ruling did the Supreme Court give the federal Parliament a say in the wording of the referendum question, nor did it authorize the government to rule on its clarity before it was even adopted by Quebec’s National Assembly? That nowhere in its ruling did the Supreme Court give the federal Parliament the right to impose – under the guise of clarification – a question that must expressly exclude any reference to a political or economic partnership? That nowhere in its ruling did the Supreme Court recognize the authority of the federal Parliament to set a posteriori and at will the majority required? Using the Supreme Court of Canada for political ends has not given the results the central government was hoping for. It was certainly not expecting the Court to recognize that the Canadian territory is divisible on the basis of provincial boundaries – the clearly acknowledged boundaries on the basis of which they joined the Canadian Confederation; or the legitimate nature of the sovereignist option; or the creation of an obligation to negotiate on an equal footing in the case of a clear response to a clear question (with the Court never defining what is clear and what is not, while it emphasized on several occasions the political assessment needed in the case of such questions); or the acknowledgment that in the case of the central government acting in bad faith, international recognition of a sovereign Quebec would be made easier. Bill C-20 was the federal government’s attempt to correct its error -- by rewriting the Court’s opinion. The current situation seems irrevocable. Canada in the new millennium has decided to construct a new self, moving ahead without any heed to what is different about Quebec. No one in English-speaking Canada seemed particularly disturbed by the fact that Quebec was cut

Conflicting Identities and Federalism: A Quebec Perspective  219

out of the negotiations on the Social Union Framework Agreement. And no one is seriously trying to create the conditions that would allow Quebec to rejoin the Canadian constitutional flock. Indeed, English Canada’s response has been one of perfect indifference to the proposals for administrative reform in the Canadian system put forward by the Quebec Liberals, who seem to have lost almost all political leverage in their unconditional support for Canada. For Quebec federalists who still believe in a strong Quebec in a Canada respectful of the federalist principle, this is a damning realization. A Different Canada under the Conservatives? Clearly, we need to ask what effect the fact that the federal Liberals are now out of power will have on dealings between Quebec and Canada. One of the most striking aspects of the election held in the fall of 2009 was, without a doubt, that the Conservative Party seemed poised to make a breakthrough in Quebec until it foolishly announced spending cuts to arts funding and a revision of traditional policies dealing with young offenders. It is blindingly clear that this near-breakthrough was not attributable only to the public’s disgust at the thoroughly corrupt federal Liberals; it also illustrates the persistent hope among a great many Quebecers that Canadian federalism can be renewed. This hope is based on four factors: the difficulty of giving up on Canada entirely; a new federal partner, in appearance at least, more open than his predecessor; the short memory or lack of awareness of so many Quebecers as to the failure of all previous attempts at a constitutional renewal of Canadian federalism that would address Quebec’s historical claims; and Quebecers’ failure to understand the profound changes taking place in English Canada over the past several years. The first factor involves sovereignists. Many of them have trouble understanding how extraordinarily difficult it is for some people – in particular, people who define themselves as French Canadians – to give up once and for all on the country their ancestors built, or in the case of people who are Quebecers by immigration, the country that welcomed them in.5 The second point concerns Quebecers still hoping for a renewed federalism that would address Quebec’s historic claims. There was little mention in Quebec that, on the day after Stephen Harper’s 9 December 2005 speech in which he broadly outlined his open federalism, the Toronto Globe and Mail warned the Conservative leader that he would not be allowed to be a ‘head waiter’ to the provincial governments.

220  Joseph Facal

Stephen Harper has since undertaken to lower expectations. The promise, for example, of giving Quebec a seat at UNESCO modelled on its position at the Francophonie Summit has already evaporated. A great many Quebecers also do not realize the extent to which the Trudeauist concept of Canada – denial of the 1867 constitutional separation of powers, omnipresent central government, subordinated provinces, the absolute primacy of individual rights, and a refusal of any special status for Quebec – is now the dominant vision among Canadians outside Quebec of the kind of country they want to build. This vision is fundamentally incompatible with the Quebec vision of Canadian federalism advanced by Robert Bourassa and Claude Ryan. The proof lies not only in the failure of all Quebec’s attempts to renew Canadian federalism, but also in the fact that at each attempt, Quebec sets the bar of its claims lower and Canada’s refusal is more determined. The tensions between Quebec and Canada are nothing like the usual tensions in other federal systems around the world, nor do they result from the bad faith of those involved. Here, they arise from two fundamentally incompatible readings of Canada’s past and future. As the number of Canadians born outside the country grows, the idea of granting special status to a group calling itself a founding community, but which new Canadians see as an ethnic minority like any other, appears increasingly outlandish outside Quebec. Since many of these new Canadians have had to give up their mother tongue as their primary means of communication on coming to Canada, they do not grasp the fierce attachment of French-speaking Quebecers to theirs, especially since they do not make the key distinction between preserving a language on an individual level in the context of a diaspora, and establishing a language as the common language of a society. Not only do they associate Quebec’s claims with a request for special treatment, they also see Quebecers’ insistence on obtaining recognition of their collective identity as ethnocentrism. As the face of Canada changes, the refusal to recognize that Quebec’s special status can and should have institutional policy implications becomes each time more final. All this is, of course, exacerbated by the fear that the smallest concession to Quebec will lead to yet another demand for special recognition, and another, and so on, ending in the dissolution of Canada. In a remarkable paradox, the Trudeauist strategy of voluntarily refounding Canada by denying the national character of Quebec as a political entity, which is now being implemented in the name of Canadian unity, appears to have divided the stakeholders in

Conflicting Identities and Federalism: A Quebec Perspective  221

a way that is probably irreversible. At this point, it is hard to imagine why Prime Minister Harper would want to go any further than the voters – for whom the Quebec question is closed once and for all – would let him. That so many Quebecers do not see this is proof of the ravages that time and ignorance can bring. Those who doubt this should conduct the following experiment: how many Quebecers of their acquaintance, twenty years old and under, know that Quebec is not a signatory to the 1982 Constitution? How many older than that can list the five demands made by Quebec that formed the core of the Meech Lake Accord? Jean Charest’s government is so keenly aware that constitutional recognition of Quebec’s specificity is a taboo subject in English Canada that not only is he the first premier in Quebec’s history not to make any constitutional claims, he actually considers Stephen Harper’s recognition of the pernicious effects of the central government’s intrusions during Jean Chrétien’s time in office as gains for Quebec. The Charest government seems to be having a hard time keeping reconciliation from rhyming with renunciation. As far as Quebec’s historic claims go, the danger clearly lies in Jean Charest accepting a mess of pottage. It bears repeating here that an increase in federal transfer payments is not a solution to the fiscal imbalance. Not only would such an increase make Quebec more dependent, forcing it to go begging to Ottawa more often, but because transfer payments come with conditions, they are a kind of Trojan Horse that the central government can use to impose its priorities, which are those of the Canadian majority, and thus force Quebec into a mould designed by others. True political autonomy would be impossible without fiscal autonomy. Other than the sovereignty of Quebec, only an equal redistribution of the tax base could genuinely address the fiscal imbalance. We are also told about the wonderful administrative agreements. But how is it that administrative agreements exist only in areas of provincial jurisdiction, never in Ottawa’s? Administrative agreements are the fallback measures on which Quebec relies when faced with the fait accompli of a federal intrusion into its jurisdictions. Basically, Ottawa tells the provinces: ‘What’s mine is mine and what’s yours will be managed jointly.’ If anyone objects, he is told ‘people are tired of squabbling.’ Anyway, administrative agreements are subordinate to the general principle that provinces are to be treated equally. Anything offered to one province must also be offered to all the others. Since the other provincial governments do not want the kind of decentralization

222  Joseph Facal

or responsibilities that Quebec does – their populations think there is nothing wrong with the national government holding key responsibilities – Quebec finds itself grinding in the gears of this lowest common denominator, helpless to wish for anything more than what might be granted to the other provinces. The fiscal imbalance is a striking example: the governments of all the other provinces have said they would be happy with an increase in federal transfer or equalization payments; Quebec alone wanted a transfer of tax points. On the purely constitutional question, the outcome is irrevocably blocked: Quebec’s vision of a constitutional sharing of powers is seen as desperately outmoded in a Canada that has undertaken to rebuild itself on principles light-years away from the historical Quebec reading of a two-party deal. It might seem that none of this is very important, given that globalization will inexorably, some say, relativize the role of politics, the state, and the phenomenon of nationalism.6 That view is profoundly mistaken. On the contrary, globalization appears to be reawakening nationalist sentiments. Only forceful political action makes it possible to set democratic counterweights against transnational economic forces. And, while it is true that globalization changes the functions and attributes of the state, it remains no less true that the number of sovereign states in the world today continues to grow (there were 51 in 1945 when the United Nations was created, 122 in 1965, today there are close to 200), and the autonomy lost in the emergence of policies affecting their national territories is compensated by the possibility of negotiating with other states undergoing the same changes. It follows that the attribute of national sovereignty that gives a nation the right to participate fully in international forums assumes crucial importance. It is when a federated state is increasingly subordinated that the undeniable democratic deficit resulting from globalization, affecting sovereign states as well, is joined by yet another deficit. Indeed, for citizens of a federated state that they consider to be their national state, the already considerable difficulty of convincing as many people as possible to participate democratically in decisions made higher up is not cancelled out by the latter’s direct participation in international forums where only unitary state governments and the central governments of federations may hold seats.7 Becoming increasingly a unitary system of government rather than a true federation, the Canadian political system has failed in its historic mission to allow the coexistence of the distinct identities of Canada’s two founding communities, communities now following separate paths

Conflicting Identities and Federalism: A Quebec Perspective  223

and meeting only as adversaries. The intrusion into areas of provincial jurisdiction, the imperious exercise of federal spending powers, the imposition of pan-Canadian standards, and the continued overlapping of responsibilities all irritate the other provincial governments but do not jeopardize the very identity of their populations. Most Canadians find nothing wrong in the fact that their national government in Ottawa holds power over key strategic decisions for their community. In Canada, classic federalist doctrine has been killed in the name of Canadian unity. I conclude from this that Quebecers who forget the lessons of the past and succumb to a siren song leave themselves open to the worst kind of disappointment and risk losing even more ground. Notes   1 Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007).   2 Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Don Mills: Oxford University Press, 1997).   3 John E. Trent, ‘Canadian Federalism under Pressure: Principles, Political Culture and Renewal,’ in John E. Trent, and Guy Lachapelle, eds., Globalization, Governance and Identity, 233–66. (Montreal: Les presses de l’Université de Montréal, 2000).   4 Kenneth C. Wheare, Federal Government, 4th ed. (New York: Oxford University Press, 1967), 93.   5 Christian Dufour, Le Défi québécois (Quebec: Les presses de l’Université de Laval, 2000 [1989]).   6 Kenichi Ohmae, ‘The Rise of the Region State,’ Foreign Affairs 72/2 (1993), 78–87.   7 Denis Monière, Pour comprendre le nationalisme au Québec et ailleurs (Montreal: Les presses de l’Université de Montréal, 2001).

8 The Canadian Charter of Rights and Freedoms and Its Consequences for Political and Democratic Life and the Federal System josé woehrling

Like the United Kingdom, Canada was one of the Western liberal democracies slowest to adopt a constitutional charter of rights and freedoms that could be enforced through judicial review of constitutionality. It was only in 1982, 115 years after the creation of Canada, that the Canadian Charter of Rights and Freedoms1 was enacted. One of the explanations for the delay in adopting an institution now considered inseparable from liberal democracy is the British origin and inspiration of Canadian constitutional law. In 1867 British constitutional theory was still based on the principles of parliamentary supremacy and the rule of law. The parliamentary supremacy principle is, of course, incompatible with limitation of Parliament’s powers through supralegislative rights’ protection instruments applicable by the judiciary. The traditional British version of the rule of law principle means that rights and freedoms are protected through ordinary legislation and the common law rather than through their entrenchment in a supreme constitution. The traditional British model is consistent with an understanding of democracy in which priority is given to the majority principle, universal suffrage, and representation. It is based on the conviction that Parliament elected by the people has to have ultimate responsibility to arbitrate between individual rights and the general good. However, in parliamentary systems of government like those of the United Kingdom and Canada, where there is usually a clear majority in Parliament and strong party discipline, parliamentary sovereignty really means concentration of power in the hands of the Executive, and thus ineffective checks and balances. This is one of the reasons this system was gradually challenged, both in Canada and the United Kingdom.2 Indeed, today, judicial review of constitutionality and constitutional instruments that enshrine rights

The Charter of Rights and Freedoms and Its Consequences  225

and freedoms are institutions that have come to be considered essential in constitutional democracies. Even in the late 1980s, however, many Canadian politicians and legal scholars still held by the British political and constitutional ideal and were thus reluctant to give the courts the power to censure the will of elected members of the legislature on the basis of a vague, abstract constitutional catalogue of rights and freedoms. Moreover, many provincial premiers suspected that such a charter would come to be an instrument of centralization and standardization, and thus detrimental to provincial autonomy since it would be interpreted and applied in final resort by justices of the Supreme Court of Canada, who are unilaterally appointed by the federal prime minister without any real input from provincial authorities. These concerns explain the hesitation of Canadian political decision-makers in 1982 to wholly abandon the British model, which gives ultimate power to an elected Parliament, and adopt instead the American model, which accords such power to the judiciary. They chose to combine both systems by inventing an original compromise consisting in the possibility for the federal Parliament and provincial legislatures to exclude application of most guaranteed rights and freedoms by simply inserting a notwithstanding clause into a statute.3 In what follows, we shall examine the consequences of application of the Canadian Charter of Rights and Freedoms, first on political life and the workings of democracy, and then on the equilibrium of the federal system. The Canadian Charter’s Consequences on Political Life and the Workings of Democracy The Supreme Court of Canada’s Attitudes When Applying the Charter: Between Judicial Activism and Restraint In the years immediately following enactment of the Canadian Charter, namely, between 1982 and the end of 1986, the Supreme Court took a strong activist attitude as it established the conceptual framework for application of the Charter. Not only did the Court construe guaranteed rights and freedoms very broadly, but its interpretation of the reasonable limitations clause provided for in Section 1 set very demanding conditions to be met by any government action seen as restricting rights and freedoms. Moreover, the philosophy flowing from the Court’s deci-

226  José Woehrling

sions at the time was clearly classical, anti-state liberalism. The Court seems to have seen the Canadian Charter as having a sole function: to limit state intervention, which was perceived with much suspicion and as almost always inimical to individual rights and freedoms. The judicial activism of the first five years can be explained in several ways. The Court seems to have been eager to live up to high expectations in the legal community as well as in the general public, since the Charter’s enactment had been accompanied by much media hype and political fanfare by the federal government. Growing disillusion with the political process in Canada and elsewhere led many interest groups to believe that they would be able to win in court reforms and victories what they had given up trying to secure in the political arena. Finally, the Court wanted to proclaim that it would give the Charter a more liberal interpretation than the ill-fated Canadian Bill of Rights, which had been adopted in 1960 but which the Court had severely hindered through an overly restrictive interpretation. At the end of 1986, however, the Court’s position began to change. At that time, it handed down several decisions in which some rights and freedoms were construed in a restrictive rather than broad fashion. For example, the Court ruled that freedom of association neither entails a right to collective bargaining on working conditions nor a right to strike.4 Around the same time, the Court began to recast the test of justification it had previously read into Section 1 of the Charter so as to give it more flexibility and thus allow the rigorousness of judicial review of constitutionality to vary in accordance with different considerations. At that time, the Court’s members also began to divide along ideological lines, in particular with respect to application of Section 1 of the Charter, which allows justifiable restrictions on rights and freedoms. Application of that section has pitted the proponents of strict judicial scrutiny of legislation against the advocates of a more restrained attitude and greater judicial deference to the elected legislature. When a controversial decision is rendered on the basis of a slim majority (occasionally only one vote), the division between the judges resulting from their different positions over the degree of deference owed to the legislator, the political nature of judicial control is revealed. It becomes difficult to claim that judicial review of constitutionality is based on purely legal considerations.5 Section 1 of the Canadian Charter states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

The Charter of Rights and Freedoms and Its Consequences  227

The Supreme Court of Canada has formulated a series of legal tests to apply Section 1.6 To begin with, the Court must examine the challenged legislation in order to ascertain whether it violates a Charter right or freedom. If it does, the Court must then perform a Section 1 analysis to determine whether the violation can be justified. This is a two-step process. First, the objective of the legislation has to be examined to determine whether it is compatible with Charter values and sufficiently important to justify the restriction of a guaranteed right or freedom. If this condition is not met, the inquiry can stop and the impugned measure must be considered unjustifiable. If the legislation’s objective passes the test, its proponents must, second, demonstrate that the restrictions contained in the challenged measure (1) are logically connected to the legislation’s purpose, (2) impair rights and freedoms no more than necessary to accomplish the purpose (this is known as the ‘minimal impairment’ test), and (3) entail deleterious effects that are less serious than the beneficial effects of the challenged measures. Clearly, this judicial construction does not fully respect the textual meaning of Section 1 of the Charter, which speaks of ‘reasonable’ rather than ‘necessary’ limits. A measure limiting a right or freedom can be reasonable without being necessary. Furthermore, from a practical point of view, the justification tests adopted by the Court seem rather inflexible. While several means of attaining a given legislative objective may be deemed ‘rational’ or even ‘proportional,’ in each case only one should logically be considered as impairing rights or freedoms ‘as little as possible.’ In other words, the ‘minimal impairment’ (or ‘least drastic means’) test, if applied to the letter, leaves the legislator with no margin of manoeuvre at all. It invites courts to replace the legislative choice of means by their own or, at least, to impose on the legislature the precise means it may use to achieve a given end. For any legislative policy, it always seems possible to imagine different means that could, in the abstract at least, be considered ‘less drastic’ than those chosen.7 Thus, by combining a very broad and liberal interpretation of the scope of most guaranteed rights and freedoms with a series of extremely demanding tests for justification of any prima facie restriction of these rights, the Supreme Court gave itself all the tools it needed to exercise strict scrutiny of challenged legislation. Such an analytical framework permitted an activist attitude rather than one of self-restraint and deference to the legislature. At a later stage, however, the Court began to show more flexibility towards application of the justification tests, and introduced several criteria allowing variations in its scrutiny, depending on the circumstances of the case. We shall now briefly examine the main considerations that

228  José Woehrling

the Supreme Court of Canada uses to adjust its alternating attitudes of judicial activism and deference to the legislature. First, the Court sometimes considers it must show more deference to legislative decisions when the purpose of the impugned measure is to protect a vulnerable group. For example, in a 1986 decision, the Court found that an Ontario statute restricted freedom of religion by prohibiting most commercial activity on Sundays. The majority opinion, however, was that the restriction was a reasonable limitation under Section 1 of the Charter.8 One of the reasons given was that the impugned statute was designed to protect retail store employees, a group considered vulnerable. In another decision, in 1989, the Court concluded that a Quebec statute restricted freedom of expression by prohibiting commercial advertising in television programs targeting children under 13 years of age. Yet, the majority opinion was that the restriction was justifiable. Among the reasons stressed was that the legislation’s purpose was to protect a particularly vulnerable group, namely, young children.9 In a similar vein, the Court sometimes declares that more deference is warranted when the legislature acts as a mediator between conflicting interests of competing social groups rather than as a ‘singular antagonist’ of the individual whose rights have been infringed. In the same two decisions, the Court pointed out that the issue required ‘an assessment of conflicting scientific evidence and differing justified demands on scarce resources.’ Here we find the idea that the working of the judicial process does not always equip judges with the necessary knowledge of the ‘legislative facts’ (the relevant social and economic background) that is required to pronounce on the reasonableness or necessity and efficacy of the contested legislation. Consequently, in some areas, the Court’s limited expertise should militate in favour of more deference to the legislature, which is in a better position to assess all facets of complex social problems. Another factor that can justify attenuation of the degree of control is the nature of the legislation in question. Thus, the Court is especially strict with respect to criminal law. This is clearly because such legislation entails particularly serious threats to individuals’ freedom and safety and also because criminal law is an area in which the courts consider themselves, rightly, to have special competency. In contrast, on a number of occasions the Court has stated that less strict judicial scrutiny is sufficient for commercial and ‘socioeconomic’ legislation in so far as it does not challenge ‘fundamental values.’ It should be noted, however, that the notion of ‘socioeconomic legislation’ is not really defined. Finally, the Court sometimes

The Charter of Rights and Freedoms and Its Consequences  229

holds that judicial scrutiny can vary depending on the nature of the right or freedom, since some rights can be considered less important than others and therefore justify less control and more deference to the choices of legislative bodies. Economic rights, in particular commercial freedom of expression, are thus among those that the Court sometimes considers more easily limited. With so many and such complex criteria for varying the rigour of the judicial scrutiny, the approach is bound to be different from case to case and, within a single case, from one justice to the next. The advantage of this for the courts clearly lies in the resulting power to assess each case individually. It allows them to take into account the complexity and specific nature of each situation, for each case is judged on its merits. Consequently, it is extremely difficult to predict Supreme Court decisions when they turn on application of Section 1 of the Charter. It is also relatively frequent for judicial opinion to be divided over how proportionality should be assessed, and decisions are often based on a slim majority or even a single vote. A confusion sometimes encountered is the assimilation of, on the one hand, judicial activism with progressive attitudes and, on the other hand, judicial restraint with political conservatism. This enables groups that invoke the Charter of Rights and Freedoms to claim that those in favour of deference to the legislator are conservatives. This, however, is a simplistic view that overlooks the fact that, while government intervention often limits some negative freedoms, respect for which requires no or minimal state intervention, it is nonetheless necessary for ensuring positive rights, which cannot be enjoyed without state intervention to redress social and economic imbalances among individuals. Thus, faced with legislative measures designed to establish greater equality among actors in society or to redistribute wealth in some way, a deferential judicial attitude can surely not be considered as having ‘conservative’ effects. On the contrary, in such a case an activist attitude could have anti-progressive consequences since it would invalidate or curtail the measures in question in the name of negative individual freedoms. Judicial restraint and activism are thus not in themselves progressive or conservative. It is uniquely in relation to the legislation in question that they can gain such meaning. The Supreme Court of Canada has proven sensitive to these subtleties. Since 1986 its attitude towards governmental intervention in social life has become more nuanced. In fact, the Court’s stance now depends on the nature of the rights in question. With respect to basic freedoms

230  José Woehrling

(freedom of expression, religion, association, etc.) and rights related to the judicial process and criminal proceedings, the Court continues to consider state intervention as suspect a priori and thus requiring more or less close judicial scrutiny. In these areas, it seems to consider that the ideal is minimal state intervention with respect to individual freedom. The difficulty with this point of view is that it overlooks the fact that state intervention is often necessary to control phenomena arising out of private power in society. Restricting state power in the name of the Charter thus increases the scope of private power. For example, prohibiting regulation of television advertising in the name of freedom of expression amounts to increasing the power of large companies to impose their commercial propaganda on television viewers. Similarly, prohibiting the state from limiting electoral or referendum expenses,10 again in the name of freedom of expression, gives those with money disproportionate influence over the political process. In other words, to reduce the role of the state is also to impair its social function. On the contrary, with respect to the right to equality, the Supreme Court of Canada adopts a rather different point of view according to which the achievement of real, substantial, rather than purely formal, equality justifies and even requires active state intervention in order to equalize opportunities and redistribute resources. Consequently, in this area the Court accepts and promotes the welfare state. With respect to the right to equality, the courts sometimes even engage in a form of activism that forces the legislator to intervene to establish or re-establish equality. For example, in a 1992 decision, the Supreme Court considered it had the power to extend by its own judicial action the social benefits provided for in some legislation to new categories of beneficiaries if it found that the legislator had limited benefits in a discriminatory manner.11 It should be noted that Quebec’s legislation has proven particularly vulnerable to Charter challenges, mainly in two areas that are crucial to Quebec’s distinct nature: education and language. The Charter of the French Language12 (Bill 101) has often been challenged successfully. The Supreme Court of Canada declared invalid the provisions restricting access to English public schools to children who have one parent who was educated in English in Quebec. This requirement contradicted Section 23 of the Canadian Charter of Rights and Freedoms, which gives this right to all children who have at least one parent who was educated in English anywhere in Canada.13 In 1988, in another decision, the Court based its reasons on freedom of commercial expression and pro-

The Charter of Rights and Freedoms and Its Consequences  231

hibition of discrimination, and rendered invalid the Bill 101 provisions that prohibited the use of a language other than French on commercial and corporate signs.14 The Court found that Quebec could impose the use, even preponderant use, of French in this respect, but that it had no justification for prohibiting the use of other languages. It should, however, be noted that, in this case, the Court also based its findings on the freedom of expression and right to equality guaranteed by the Quebec Charter of Human Rights and Freedoms (the Quebec Charter).15 Here, consequently, failure to apply the Canadian Charter in Quebec would not have had different consequences. Following this decision, the Quebec National Assembly adopted two notwithstanding clauses, one for each charter, so as to render the decision ineffective and restore the validity of the Bill 101 provisions in question. Notwithstanding provisions designed to set aside application of the Canadian Charter are valid for five years, but can be renewed. The outrage provoked by this action in English Canada, however, was so strong that five years later, in 1993, the Government of Quebec did not dare renew it.16 It preferred to amend Bill 101, thereby establishing the kind of regime that had been suggested by the Supreme Court itself: public notices and commercial advertising can now be in French, and in one or more other languages, so long as the French is ‘markedly predominant.’ Legalization and Judicialization of Political Life Generally, it has been noted that constitutional law fosters legalization and judicialization of political life. Social actors have a growing tendency to resort to constitutional provisions in order to formulate their political claims in terms of rights to be respected or won (i.e., they legalize the issue by formulating political claims in legal and constitutional terms). Many special interest groups now avoid democratic mechanisms, which they consider too unwieldy or costly, and find it easier to submit their requests to the courts by reformulating them in the language of rights and freedoms (i.e., they judicialize the issue by using the judicial rather than the political process to advance economic and social interests). Translating political and social claims into the language of rights and freedoms has a number of undesirable effects on the workings of Canadian politics. First, the rhetoric of rights and freedoms gives an absolute, non-debatable appearance to issues that have traditionally been considered subjects of legitimate political disagreement. Systematic

232  José Woehrling

recourse to the discourse of human rights thus has the perverse effect of making it much more difficult to reach political compromises on issues about which there is no social consensus. Next, rephrasing political and social issues in the language of rights impoverishes political debate.17 The result is that the values contained in the Canadian Charter of Rights and Freedoms are considered to be the only ones worthy of respect and sufficient to account for the entire concept of a free and democratic society. Yet, the Canadian Charter mainly guarantees individual rights and negative freedoms, the implementation of which requires government withdrawal and non-intervention. Systematic recourse to rights discourse thus encourages a truncated liberal vision in which all state intervention is suspect because it threatens the sphere of individual autonomy protected by negative rights. In contrast, socioeconomic rights and collective values, which require active state intervention, are barely if ever mentioned in the Charter provisions guaranteeing rights and freedoms. Public interest objectives thus can be taken into account mainly through the limiting clause of Section 1 of the Charter, in other words, from the perspective that they limit individual rights and negative freedoms. Naturally, collective rights will tend to be considered suspect. Moreover, since they are barely listed in the Charter, it is easy to consider collective values as subordinate to individual rights, which are emphatically guaranteed. As human rights discourse grows in importance in the political debate, it also has regrettable consequences on the conduct of political decision-makers, who often adopt a defensive stance, and integrate anticipated interventions by courts into calculations and legislative programs. Legislators and regulatory authorities self-censure in order to comply with what they believe are the prescriptions of the Canadian Charter. Political choices are thus restricted by real and imagined constitutional constraints.18 In other instances, invoking constitutional constraints allows political actors to avoid unpopular or difficult choices and take cover behind the courts, which then become responsible for finding solutions. Sometimes court intervention leads legislators to adopt purely reactive attitudes and settle for a new, less effective, version of a policy that is nonetheless socially necessary. The effects on politics, however, of judicial control based on a charter of rights and freedoms are not only negative. One cannot deny that withdrawing some issues, such as abortion and homosexual marriage, which challenge the truly fundamental values of some people and groups and over which opinion is strongly or even irremediably divid-

The Charter of Rights and Freedoms and Its Consequences  233

ed, from the political arena is probably the best solution. (We will come back to this later.) In some cases, court decisions have forced legislators to amend outdated and unjustified provisions that prevented the participation of some categories of individuals in electoral processes (e.g., judges, prisoners, and some categories of disabled people). Under Charter pressure, other legislative amendments have been adopted to make it possible to vote by proxy or correspondence, for which there was no provision before. The Charter has also been used to successfully challenge electoral district boundaries that led to inequitable and unjust results. More generally, a number of minorities and vulnerable groups, such as women, homosexuals, disabled people, and members of Frenchspeaking minorities living outside Quebec, have used the Canadian Charter of Rights and Freedoms in court to achieve progress that probably would not have been possible through politics, or would have been slower and more arduous. In fact, the courts are often considered justified in adopting a more interventionist attitude with respect to legislation that prevents or makes more difficult the participation of some groups in the democratic process. The same is true of legislation that is unfavourable to underprivileged social groups, such as minorities that are underrepresented and lack the means to promote their interests in the political process. In other words, while courts must not impose their own values, they have to ensure that the democratic process operates in a way that allows all interests to be represented, including those of minority and marginalized groups. From this point of view, judicial scrutiny of legislation does not contradict the democratic principle of representation but, on the contrary, reinforces it by allowing a correction to its shortcomings.19 The intervention of a relatively nondemocratic body, such as the courts, can be justified precisely when the representative process operates poorly or the democratic majority abuses its power with respect to minorities or otherwise powerless groups. It is therefore not surprising to find this reasoning frequently invoked by the Supreme Court of Canada to justify constitutional scrutiny.20 Thus, as we have seen, when applying Section 1 of the Charter, which leads it to assess the reasonable nature of legislation limiting rights or freedoms, the Court considers that it can exercise stricter scrutiny if the challenged legislation impairs the rights of a vulnerable group. Similarly, Section 15, which guarantees the right to equality, has been interpreted as primarily intended to protect marginalized and isolated minorities.21

234  José Woehrling

As well, it cannot be denied that some highly controversial issues that bring fundamental moral values into question are easier to resolve in the judicial arena than through the political process, where electoral concerns reign. Abortion is a good example. In Canada, criminal legislation used to prohibit abortion unless there were therapeutic reasons. The provisions were challenged both by pro-life groups, which found them too liberal, and by pro-choice groups, which would have liked abortion for personal reasons to be legal. The Supreme Court rendered the provisions in question invalid in 1988 on the grounds that some of the conditions and formalities required for obtaining a therapeutic abortion were needlessly restrictive.22 Equal division of the vote in one of the Houses of Parliament (the Senate) prevented the adoption of new provisions consistent with the Court’s decision. The result is that today abortion is permitted without any criminal restrictions. This seems to show that, with respect to abortion, a legislative decision has become virtually impossible and only the courts are still able to change the law. Finally, one might wonder whether constitutional scrutiny based on rights and freedoms is not leading to the emergence of a new form of democracy different from both representative and direct democracy: ‘continuous’ democracy that does not eliminate representation but expands it by inventing new ways for people to participate, in particular through constitutional justice.23 While in classical representative democracy, between elections, individuals have essentially no means of action or control with respect to their representatives, recourse to constitutional review by courts allows them to exercise some institutional control. Moreover, disillusionment with politics and politicians explains the rise in esteem for judges: people place much more trust in judges than in elected officials. Judges, rather than elected officials, seem closer to the democratic, liberal ideal. While the Executive still has a monopoly over implementation of legislation and control over legislative procedure, and Parliament remains the only forum for discussing and amending bills, the Supreme Court increasingly expands its role, not only by invalidating legislation but also by clarifying its meaning, defining how it is to be implemented, and even reformulating it. In fact, in liberal democracies, a ‘competition-based regime’ is emerging with respect to the formulation of legislative policy: the courts are becoming players in the process and have decisive influence on legislative policy. Legislation is now less a product of the will of a single actor, Parliament, than the result of deliberations among the various institu-

The Charter of Rights and Freedoms and Its Consequences  235

tions involved in its formulation, each defending its own approach and requirements.24 The Canadian Charter’s Consequences on Federalism Implementation by federal courts of a charter of rights contained in a federal constitution can have effects that are both centralizing and standardizing. Centralization and standardization can, however, contradict some objectives traditionally sought through federalism. Centralization consists in a transfer of powers from federated bodies to a federal body. It is antagonistic to the autonomy of the federated states. Standardization involves imposition, by the courts, of uniform values that limit the ability of federated states to adopt differing policies. It compromises federal diversity. Centralizing Effects of Constitutional Scrutiny Based on the Canadian Charter The centralizing consequences of implementing the Canadian Charter take three main forms. transfer of some decisional power from representative provincial bodies to federal judicial bodies Protection of rights by courts, with the Supreme Court of Canada as the last resort, results in a transfer of decision-making power over social, economic, and political issues from representative provincial bodies to a federal judicial body. This thus implies a deficit in terms of federalism. As a federal body, the Supreme Court is more sensitive to the priorities and concerns of the federal political class and elites than to those of the provinces. There are natural and institutional links among members of the Supreme Court and federal politicians: they share the same political culture. This is even truer in Canada than in the United States and other federations. The Canadian federal government has complete discretion to appoint members of the Supreme Court of Canada without any real input from the provinces. In contrast, in the United States as in most other federations, the federated states can influence appointments to the Supreme Court or Constitutional Court through the Senate (i.e., the federal house), which participates in the appointment of the Court’s members. Studies show that in federated or regionalized states, supreme and constitutional courts almost always have a centralizing

236  José Woehrling

influence, and foster a long-term increase in the political legitimacy and powers of the national government.25 consolidation of national identity to the detriment of provincial identity Protection of rights through the federal constitution and the federal courts helps to create and consolidate a shared national identity, in other words, a feeling of common citizenship. Such nation-building is almost necessarily at the expense of identification with the provincial community. Systems for the protection of rights through a national constitution and the federal courts are thus powerful tools for unifying mentalities and loyalties. This then facilitates centralization of power. It is in this perspective that there is a relatively widely shared opinion that in 1982 one of the primary objectives of the Canadian Charter of Rights and Freedoms was nation-building: the establishment of an institution that would help to consolidate Canadian identity and the legitimacy of the central government, and thus foster centralization of power.26 To facilitate various interest and pressure groups’ recourse to the Canadian Charter, there is a federal program that provides financial aide for court cases. It is true that both federal and provincial legislation can be challenged, but most often the target is provincial legislation. Created in 1978 to support official language minorities, in 1985, three years after the Canadian Charter came into force, the program was extended to women, visible minorities, Aboriginal people, and disabled people. Abolished by the Conservatives for financial reasons in 1992, it was reinstated by the Liberals in 1994, to be abolished again by the Conservatives in 2006 (the Liberals pledging to re-establish it when they were back in power). In this way, the federal government develops links with the most politically active groups and ensures their loyalty. When conflicts arise between the federal government and provincial governments concerning constitutional issues, that loyalty generally remains. Thus, the Charter of Rights and Freedoms and funding for legal recourse allow federal authorities to cultivate vote-catching in a new way. ‘Charter groups’ include, in particular, associations that protect the rights of women, official language minorities (i.e., the English-speaking minority in Quebec and the French-speaking minorities in the other provinces), disabled persons, gays and lesbians, and ethnic groups.27 Charter group mobilization in favour of centralization was strong in Canada between 1987 and 1992, during discussion of two successive constitutional reform proposals (the Meech Lake Accord and the

The Charter of Rights and Freedoms and Its Consequences  237

Charlottetown Accord) that had some decentralizing aspects. Although they were supported at the time by the federal government, the groups strongly opposed the proposals because they feared that if the federal government lost influence, it would be less able to help them. (On that occasion, the Charter groups proved to be more opposed to decentralization than the federal government itself.) It is generally agreed that the Canadian Charter of Rights and Freedoms created new civic awareness, among English Canadians, based on rights’ entitlement claims and expressions of identity articulated at the national level rather than regionally or provincially. In contrast, the Canadian Charter increased divisions and antagonism between Quebec and the rest of Canada. This was not, as is sometimes claimed, because Quebecers are illiberal or hostile to rights and freedoms; Quebec also has a charter, the Quebec Charter, which is comparable in its content and effect to the Canadian Charter. Rather, the way that the Canadian Charter has been used has made it appear incompatible with Quebec’s efforts to protect its language and culture. Obviously, this refers to Supreme Court of Canada decisions based on the Canadian Charter that have invalidated some parts of the Charter of the French Language (see above). Moreover, in discussions concerning the Meech Lake and the Charlottetown accords, the Canadian Charter was invoked against Quebec’s efforts to have its distinct nature acknowledged. Such recognition was systematically presented as aimed at ethnic and cultural isolation and as a serious threat to individual freedoms and the protection of minorities. In summary, the federal Constitution and courts-based systems for protecting rights and freedoms create a culture and political practices favourable to the increase of federal powers at the expense of those of the provinces. economic and social rights as justification for federal intervention in provincial jurisdictions In Canada, economic and social rights (i.e., primarily health care, social services, and education rights) are used to justify federal intervention in areas under provincial jurisdiction. Federal intervention is presented as necessary to redistribute resources among regions with different levels of wealth and to ensure a degree of uniformity in the way provinces deliver social services. Although economic and social rights are not formally guaranteed in the Canadian Constitution, the need to implement them effectively and consistently is an argument used in political discourse to justify the redistributive, harmonizing role of federal authori-

238  José Woehrling

ties. In other words, individual rights discourse has been transposed into the domain of collective social rights and redistribution to provide a basis for federal intervention. The vehicle for federal intervention is the spending power, which refers to the ability of federal authorities to employ financial resources for purposes under exclusive provincial jurisdiction.28 The federal government has greater capacity than the provinces to raise and spend funds. By offering to provide all or part of the funding of programs under the jurisdiction of the provinces, and by attaching conditions on the receipt of such money, the federal government is able to intervene in areas under constitutionally exclusive provincial jurisdiction. Federal funding is generally conditional on compliance with certain national standards set by the central government. (They must be distinguished from equalization payments, on which there are no conditions.29) It is clearly very difficult for provinces to reject such funding. Yet, if they accept it, they have to comply with federal standards when operating in jurisdictions over which the Constitution gives them exclusive power. Moreover, since the programs often involve joint funding, by participating in them, provinces accept budget priorities that are not their own. Furthermore, there is the possibility that federal authorities could unilaterally withdraw or reduce federal participation at a point when it is no longer politically possible to cancel the program. An additional criticism of this system is that it creates confusion with respect to accountability for budgetary and political decisions: the real decisions are no longer made by the local political authorities who answer to their constituencies.30 To summarize, in this case the problem stems from the opposition between protecting the autonomy of the federated states and the perceived necessity to establish or consolidate national social solidarity and protection programs. Standardizing Effects of Constitutional Scrutiny Based on the Canadian Charter One of the objectives of federalism is to promote legal, social, and cultural diversity. In their areas of jurisdiction, federated states should be allowed to create different solutions to societal problems by taking into account the cultural values specific to each regional political community. Yet, protecting rights through constitutional instruments and the courts has standardizing effects that are obstacles to such diversity.

The Charter of Rights and Freedoms and Its Consequences  239

why rights protection results in standardization: a transcendental and pre-political conception of rights The reason rights result in standardization is the way their philosophical nature is perceived: they are considered universal and transcendental (pre-political), particularly in the case of liberal individual rights. The very concept of ‘fundamental’ rights implies that they have to apply to everyone in the same way, with no or very few exceptions. Construed in this way, all variations look like unacceptable forms of relativism. Yet, this vision corresponds to only one aspect of the real nature of human rights. In many respects, human rights necessarily result from weighing and balancing interests, which is a process that is necessarily contingent and can legitimately vary over time and from one country or regional context to the next. The logic of a fundamental right is partly dictated by the community’s social, cultural, and political values. If we define rights as resulting from balancing interests through a democratic process in a concrete social and political situation, it seems advantageous to be able to adjust the solution to the specific context.31 Federalism promotes this kind of diversity. If, on the contrary, we tend to define rights as intangible universals, they have to be applied in a uniform way by the courts. In this case, federalism is an obstacle because it necessarily results in different legal regimes and some fragmentation of the system of rights. The current trend, particularly in public opinion, is to consider all rights as absolute and intangible, and consequently to see federalism and decentralization as obstacles to the uniform application of rights. This phenomenon is amplified by rights rhetoric specific to our time. Many social claims, even those that are highly sectional and related to special interests, are expressed in rights language because addressing them in that way gives them power that they would not necessarily have otherwise. legal and political aspects of standardization resulting from rights protection On the legal level, the standardizing consequences of rights protection take well-known forms in Canada. The courts, particularly the Supreme Court, impose uniform norms and standards on the provinces, which limit their choices when exercising their constitutional jurisdictions. Every time a province’s legislation is declared unconstitutional, the same automatically applies to the other provinces. We can thus speak of negative standardization. For example, in Canada, following a decision that invalidated the Canadian citizenship requirement to be admitted

240  José Woehrling

to the Bar Association as a lawyer in British Columbia, all the provinces amended their legislation to ensure consistency with the decision.32 Many other similar examples could be given. Standardization can also be more invasive. It is well-known that supreme and constitutional courts often hand down ‘constructive’ decisions in which they set out in great detail how the legislator should amend legislation to make it consistent with the Constitution. Sometimes courts go so far as to write new legislation themselves by judicially rephrasing the impugned legislative provision (adding to it or deleting part of it). In such cases, the courts impose positive uniform standards, sometimes down to minute details, on all the federated states. For example, based on prohibition of discrimination against people with disabilities, the Supreme Court of Canada indicated what sign language translation a hospital in British Columbia had to offer to people with hearing disabilities.33 Obviously, such standards also apply to the other provinces. Other examples could be cited.34 In all of these cases, standard legislation was imposed, often in a detailed manner, on the provinces by the federal Supreme Court in areas where different policies used to be possible. The standardizing consequences of rights protection by a federal constitution naturally depend on the initial distribution of jurisdictions. In the United States, one of the areas where such standardization has been strongest is criminal law because it falls under state jurisdiction. It should be noted that the ‘nationalization’ of criminal law by the Supreme Court of the United States has generally been seen in a positive light, even by those strongly in favour of state rights. The reason for this is that state protection for the rights of accused people was clearly deficient in some cases. In contrast, in Canada, the federal government has jurisdiction over criminal law, so there has been little judicial standardization in that area.35 means of attenuating the standardizing effects of rights protection Courts are aware of the potential standardizing effects of human rights protection and in some cases try to reduce those effects in order to protect the diversity goals pursued through federalism. For example, the Supreme Court of Canada has established that the very diversity of legal provincial regimes, originating from the fact that provinces exercise their constitutional powers in different ways, cannot be considered to be discrimination based on place of residence, unless the federal system is to be abandoned altogether.

The Charter of Rights and Freedoms and Its Consequences  241

There are further ways to attenuate the standardizing consequences of rights and freedoms protection, as can be seen in Canadian case law. However, in order to use them, one has to be persuaded that a degree of relativism is acceptable in human rights. First, adopting a less demanding interpretation of a right or freedom leaves greater leeway with respect to how the right is ensured. For example, it might be accepted that the principle of state religious neutrality could be complied with either by total absence of state support for religions or by perfectly equal support for all religions. If this interpretation were accepted, the provinces would have a choice between two policies that would both be equally in compliance with the Constitution; a degree of diversity would remain possible. However, if the neutrality principle were interpreted as requiring total absence of state support in all cases, only one solution would be possible and, consequently, standardization would be imposed on the provinces.36 Thus, some partisans of uniform protection for rights and freedoms distrust federalism because defence of diversity leads those in favour of federalism to request flexible application of rights and freedoms. Second, the standardizing effects of rights and freedoms can be attenuated through the criteria applied when limitations to rights are examined for justification purposes. The primary criterion for justification is the concept of proportionality: a violation is justifiable if it is proportional to important goals of social interest. Yet, the proportionality criterion is normally applied in a ‘context-dependent’ way, in other words, by taking into account the variables of the specific spatial and temporal context. A limitation that would be unreasonable in a normal situation could appear reasonable under exceptional circumstances; a limit could be considered reasonable in circumstances specific to one province, but nowhere else in the federation. Thus, for example, in 1988, the Supreme Court of Canada found in Ford37 that the vulnerability of the French language in Québec justified some limitations on freedom of commercial expression. Without saying so explicitly, it implied that the same measures would not be justified with respect to English in the rest of Canada. This approach thus made it possible for the scope of rights to vary in accordance with the limitations that could be imposed on them in certain specific contexts. Theoretically, this is a technique that could make it possible to reconcile a degree of universality in rights content with a degree of diversity in concrete application. It seems likely, however, that the courts will accept variations in the scope of rights only in exceptional cases. This is because the implementation of criteria for justifying rights

242  José Woehrling

infringements inevitably results in a comparison between the challenged policy and policies adopted in the same area by other free and democratic societies. When the challenged policy is federal, the criteria for comparison will be sought mainly in comparative law and international human rights instruments, since they are considered to be a kind of synthesis of national rights protection systems. When the challenged policy is provincial, the comparison will most often be with the law of other provinces. The greater the consistency among the various provincial legislations, the more difficult it will be to justify the challenged measure if it deviates from the provincial common denominator. By providing for rights that vary from province to province and from place to place, the framers of the Canadian Constitution also indicated that they were not opposed to some regional variation in rights and freedoms and a degree of relativism in their scope. As a matter of fact, out of the ten provinces, only three (Quebec, Manitoba, and New Brunswick) have constitutionally protected rights to official bilingualism at the judicial, parliamentary, and legislative levels.38 In New Brunswick, but in no other province of Canada, the Constitution also provides for administrative bilingualism.39 Out of the ten provinces, there are currently four in which the Constitution gives Catholics and Protestants some rights to confessional instruction in public schools. Section 23 of the Canadian Charter of Rights and Freedoms guarantees the right to education in the language of the English-speaking or French-speaking minority, but only if ‘the number of children of citizens who have such a right is sufficient.’ Consequently, the scope of this right can vary in accordance with local and regional demographic factors. Finally, Section 33 of the Canadian Charter, which authorizes the federal Parliament and provincial legislatures to depart from the rights guaranteed in Sections 2 and 7–15 by making them inapplicable with respect to any legislation containing an explicit notwithstanding clause,40 would in principle, make it possible for provinces to circumvent court decisions with standardizing effects. In reality, the notwithstanding clause is too discredited in public opinion to really be used, at least outside of Quebec.41 In Quebec, in contrast, it was used in a systematic way between 1982 and 1987, as soon as the Canadian Charter came into force, in order to protest the fact that the Charter had been adopted without the agreement of the Quebec National Assembly. It is interesting to note that the three categories of rights to which the power to derogate does not apply (democratic rights, mobility rights, and official language minority rights) are precisely those most likely to help

The Charter of Rights and Freedoms and Its Consequences  243

create and consolidate a national, shared Canadian identity (a feeling of Canadian citizenship as opposed to regional or provincial identity). In summary, despite the fact that constitutional law contains a number of techniques that make it possible to introduce a degree of relativism into the scope of rights and freedoms, protection of such rights through the constitutional and judicial process will inevitably have standardizing results. The universal, individualistic logic of rights is too powerful for concerns related to federalism and diversity to be able to oppose it effectively. Conclusion Federalism’s greatest merit is that it promotes community values. Yet, just as community values regress before individualism and personal autonomy, federalism loses strength when faced with individual rights. The ‘rights consumer’ takes the place of the deliberating citizen. When rights are seen as resulting from a process in which interests are weighed and opposing claims adjusted in a democratic manner, federalism is an advantage because it promotes participation, and thus rights can be expressed, made concrete, and adjusted in accordance with the political values of communities sharing a geographical area. When, however, rights are seen as resulting from restriction of the democratic process through anti-majority mechanisms, federalism appears threatening in some respects, for it is at the local level that majorities seem most dangerous. Moreover, if rights were pre-political and transcendental, they would be – by definition – universal and it would be impossible for them to vary from one jurisdiction to another. Quebec’s opposition to the 1982 Constitution and the Canadian Charter of Rights and Freedoms reveals the tension that can appear in a federation between protection for minorities through the creation of territory-based political autonomy and protection of human rights through anti-majority judicial processes. The existence of a politically autonomous area protects the minority concentrated there by giving it political control over certain decisions; federalism thus gives minorities some measure of autonomy based on the democratic principle of majority rule. In so far as rights protection through a constitutional instrument is an anti-majority mechanism, it limits the political autonomy of minorities that control territorial entities. A minority controlling such an entity sees its political power restricted for the benefit of its own minorities. The most problematic situation occurs when the

244  José Woehrling

‘minority within the minority’ is part of the majority at the national level, as is the case for minority English speakers in Quebec who are part of the English-speaking majority in Canada. The majority at the national level can then give in to the temptation to use its power to impose on its minority compliance with excessive guarantees benefiting the ‘minority within the minority.’ Sometimes it seems as if the national majority defends its own interests under the pretext of defending human and minority rights.42 Constitutional protection for individual rights restricts a group’s collective freedom to govern itself. This is true for all communities, both majority and minority, but it is a restriction that weighs most heavily on minorities. Notes   1 Constitution Act, 1982, R.S.C. (1985), App. II, no. 44. Sections 1 to 34 of the Act comprise the Canadian Charter of Rights and Freedoms, hereinafter referred to as the Canadian Charter or the Charter.   2 In Canada, the principle of Parliament’s sovereignty naturally had to accommodate judicial scrutiny of the federal distribution of powers, but before 1982 the Constitution did not require federal or provincial legislators to respect rights and freedoms (aside from a few minority rights).   3 Section 33 of the Canadian Charter allows the federal Parliament and provincial legislatures to legislate ‘notwithstanding’ the rights guaranteed in Sections 2 and 7–15 of the Charter, to make them inapplicable to legislation in which an explicit notwithstanding clause has been inserted (and which has been adopted in accordance with the usual legislative procedure). This eliminates all judicial control over legislation containing such notwithstanding clauses, aside from that relating to the formal conditions on deployment of the notwithstanding procedure.  A notwithstanding clause is valid for a maximum of five years, and may be renewed through a new vote. Notwithstanding clauses do not apply to three categories of rights: democratic rights (Sections 3–5), mobility rights (Section 6), and the language rights of the English-speaking minority in Quebec and the French-speaking minorities outside Quebec (Sections 16–23).   4 Re Public Service Employee Relations Act (Alta.) [1987], 1 S.C.R. 313. In 2007, the Supreme Court partly reversed this ruling and held that freedom of association guaranteed by Section 2(d) of the Canadian Charter includes a procedural right to collective bargaining; see: Health Services and Support – Facilities Subsector Bargaining v. British Columbia, 2007 SCC 27.

The Charter of Rights and Freedoms and Its Consequences  245   5 RJR-MacDonald Inc. v. Canada (A.G.) [1995], 3 S.C.R. 199 provides a good illustration of this kind of disagreement. Invoking commercial freedom of expression, the Court unanimously ruled that tobacco companies had a constitutional right to advertise their products. A five-to-four majority then ruled that the impugned federal provisions regulating tobacco advertising limited this right in an unjustifiable way. In the minority opinion, a less strict test of justification was applied to come to the conclusion that the federal measures in question were reasonable limitations on commercial companies’ freedom of expression.   6 R. v. Oakes, [1986] 1 S.C.R. 103. Regarding application of Section 1 of the Charter, see José Woehrling, ‘La Cour suprême du Canada et la problématique de la limitation des droits et libertés,’ Revue trimestrielle des droits de l’homme 4 (1993): 379–410.   7 In fact, the Supreme Court later relaxed the minimal impairment test by reformulating it in various ways, e.g., so that the legislature can choose ‘from a range of means which impair [rights guaranteed by the Charter] as little as is reasonably possible’ (R. v. Chaulk [1990] 3 S.C.R 1303) and have ‘reasonable room to manoeuvre’ (R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713) and that the impugned legislation ‘need not be tuned with great precision in order to withstand judicial scrutiny’ (R. v. Edwards Books and Art Ltd., supra).   8 R. v. Edwards Books [1986], 2 S.C.R. 713.   9 Irwin Toy Ltd. v. Québec (A.G.) [1989], 1 S.C.R. 927. 10 Libman v. Québec (A.G.) [1997], 3 S.C.R. 569. 11 Schachter v. Canada [1992], 2 S.C.R. 679. 12 Charter of the French Language, S.Q. 1977, c. 5; R.S.Q., c. C-11. With respect to Charter challenges to Quebec’s language policy, see José Woehrling, ‘L’évolution du cadre juridique et conceptuel de la législation linguistique du Québec,’ in Alexandre Stefanescu and Pierre Georgeault, eds., Le français au Québec: les nouveaux défis (Quebec and Montreal: Conseil supérieur de la langue française–Fides, 2005), 253–356. 13 Québec (A.G.) v. Quebec Association of Protestant School Boards [1984], 2 S.C.R. 66. 14 Ford v. Québec (A.G.) [1988], 2 S.C.R. 712. 15 R.S.Q., C-12. While it is not constitutional in the classical sense (it can be amended through the ordinary legislative process) the Quebec Charter has some primacy over prior and later Quebec statutes in that all legislation that is incompatible with it has to be declared inoperative unless the legislator has included explicit provisions making the Quebec Charter inapplicable. 16 In the meantime, in its 31 March 1993 findings, the U.N. Committee on

246  José Woehrling Human Rights, which had been seized by English-speaking businesspeople in Quebec, came to the same conclusion, namely, that the Bill 101 commercial and corporate sign provisions infringed on the freedom of expression guaranteed in Article 19 of the International Covenant on Civil and Political Rights, (1976) 999 U.N.T.S. 107; see Ballantyne, Davidson and McIntyre v. Canada, communications nos. 359/1989 and 385/1989, 31 Dec. 1993. 17 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991). 18 Studies show that, when legislation and regulations are being drafted, intended policies are abandoned or changed merely because it is thought there is a risk they could be considered incompatible with rights and freedoms. See Patrick J. Monahan and Marie Finkelstein, ‘The Charter of Rights and Public Policy in Canada,’ Osgoode Hall Law Journal 30 (1992): 501–46; Janet Hiebert, ‘Wrestling with Rights: Judges, Parliament and the Making of Social Policy,’ Choices 5/3 (Montreal: Institute for Research on Public Policy [IRPP], July 1999). 19 For a classical exposition of this approach, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980). 20 See, e.g., Vriend v. Alberta [1998], 1 S.C.R. 493. 21 Andrews v. Law Society of British Columbia [1989], 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration) [1999], 1 S.C.R. 497. 22 R. v. Morgentaler [1988], 1 R.C.S. 30. 23 Dominique Rousseau, Droit du contentieux constitutionnel, 3rd ed. (Paris: Montchrestien, 1993), 387 ff. 24 Rousseau, Droit, 407 and 408. See also, by the same author, ‘Questions de constitution,’ in Bernard Fournier and José Woehrling, eds., ‘Judiciarisation et pouvoir politique,’ Politique et sociétés 19/2&3 (2000): 9–31. 25 See, e.g., André Bzdera, ‘Comparative Analysis of Federal High Courts: A Political Theory of Judicial Review,’ Canadian Journal of Political Science 26/1 (1993): 3. 26 See, e.g., Peter H. Russell, ‘The Political Purposes of the Canadian Charter of Rights and Freedoms,’ Canadian Bar Review 61 (1983): 30–54; Alan C. Cairns, Charter versus Federalism (Montreal and Kingston: McGill-Queen’s University Press, 1992). 27 See Ted Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000); Rainer Knopff, ‘Populism and the Politics of Rights: The Dual Attack on Representative Democracy,’ Canadian Journal of Political Science 31 (1998): 683–707.

The Charter of Rights and Freedoms and Its Consequences  247 28 In Canada in recent years, federal authorities have been referring to social programs under provincial legislative jurisdiction but partly funded by Ottawa through the spending power as the ‘Canadian social union.’ 29 The purpose of the equalization system is to enable all provinces to provide their inhabitants with a level of public services considered to be normal without the less well-off provinces having to raise excessive taxes for this purpose. The equalization principle is enshrined in Section 36 of the Constitution Act, 1982, but in terms too vague and political for the provision to be truly binding on public authorities. 30 On the positive side, federal programs have undeniably helped to establish greater economic and social justice, but on the negative side, federal intervention has reduced diversity and local autonomy while at the same time producing programs, some of which can be considered examples of dysfunctional centralization. 31 The idea that rights result from a balancing among various interests in society and that the balance is to be normally achieved through the political process is present in the limiting provision in Section 9.1 of the Québec Charter of Human Rights and Freedoms (the Quebec Charter): ‘In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.’  On the contrary, the limiting provision in Section 1 of the Canadian Charter corresponds more closely to a conception of rights as pre-existing the legislator’s intervention, which inevitably restrains and limits them rather than providing a framework for their exercise. (‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’) More generally, it can be noted that the Quebec Charter transfers less authority to the courts than does the Canadian Charter. Indeed, numerous rights are guaranteed in it only to the extent ‘provided by law’ or with discretionary limiting provisions, which means that the legislator can adjust or limit them without having to provide justification before the courts. In other words, the Quebec Charter keeps more decision-making power in the hands of elected members of the legislature than does the Canadian Charter, which transfers more to the courts. 32 Andrews v. Law Society of British Columbia. 33 Eldridge v. British Columbia (A.G.) [1997], 3 S.C.R. 624. 34 For other examples of decisions imposing more or less detailed positive

248  José Woehrling standards on the provinces, see Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island [1997], 3 S.C.R. 3, in which the Court imposed on the provinces a set process for determining the salary for judges of provincial courts; and Vriend v. Alberta, in which the Court obliged the provinces that had not yet done so to include in their human rights legislation a prohibition against discrimination on the basis of sexual orientation (soon after, Prince Edward Island and Newfoundland amended their legislation to comply with the decision). 35 Because federal jurisdiction over criminal law and provincial jurisdiction over the administration of justice overlap, and since many aspects of application of the Criminal Code fall under the jurisdiction of provincial administrative and court officials, some standardization nonetheless results from implementation of the legal guarantees contained in the Canadian Charter. However, we are still far from the American phenomenon of nationalization of state criminal law. For a comparison of Canada and the United States with respect to the standardizing effects of implementing national constitutional instruments for rights protection, see José Woehrling, ‘Convergences et divergences entre fédéralisme et protection des droits et libertés: l’exemple des États-unis et du Canada,’ McGill Law Journal 46 (2000): 21–68; José Woehrling, ‘The Relationship between Federalism and the Protection of Rights and Freedoms,’ Indian Journal of Federal Studies 1 (2005): 23–49. 36 On the judicial interpretation of freedom of religion in Canada, see José Woehrling, ‘L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse,’ McGill Law Journal 43 (1998): 325–401. In Canadian Civil Liberties Association, (1990) 71 O.R. (2d) 341; 65 D.L.R. (4th) 1 (Ont. C.A.), the Ontario Court of Appeal adopted a very demanding interpretation of the freedom of religion (guaranteed in Section 2a) of the Canadian Charter, and judged in contradiction and unjustifiable with respect to Section 1 an Ontario regulation providing that students would receive religious education in public schools unless parents requested an exemption. If the Court had considered that the provisions concerning the exemption could save the regulation, Canadian provinces could have continued choosing between two attitudes: a regime similar to the Ontarian regime or complete absence of confessional teaching. Under the Court of Appeal’s decision, only one solution remained possible and standardization was imposed. Note that according to the United Nations Human Rights Committee General Comment 22, Article 18 (Forty-eighth session, 1993) U.N. Doc. CCPR/C/21/Rev.1/Add.4(1993) (concerning Article 18 of the International Covenant on Civil and Political Rights (1976) 999

The Charter of Rights and Freedoms and Its Consequences  249 U.N.T.S. 171), point 6, public school instruction in a specific religion or belief is not inconsistent with parents’ rights if there are provisions for exemptions. 37 Ford v. Québec (A.G.), supra, 777–9. The Court found that Sections 58 and 69 of the Charter of the French language, supra, in so far as they imposed mandatory use of French on public signs, in commercial advertising, and in company names, were limitations on the freedom of expression guaranteed by the Canadian and Quebec charters, but that such a limitation was reasonable and justifiable according to the terms of the limiting clauses in both charters, namely Section 1 of the Canadian Charter and Section 9.1 of the Quebec Charter.  In its reasons, the Court stressed the fact that the provisions in question were necessary to maintain Quebec’s visage linguistique, given the vulnerability of the French language in both Quebec and the rest of Canada. This seems to mean that since English is not vulnerable anywhere in Canada, provincial legislation imposing its use would be considered an unjustifiable restriction of freedom of expression. As mentioned above, the Court also considered that, in so far as the provisions at the time prohibited use of a language other than French, they limited freedom of expression in an unjustifiable manner. 38 The provisions in question are, for Quebec, Section 133 of the Constitution Act, 1867; for Manitoba, Section 23 of the Manitoba Act, 1870, 33 Vict., Canada, c. 3 ; R.S.C. (1985), App. II, No. 8; and for New Brunswick, Sections 17(2), 18(2), and 19(2) of the Canadian Charter of Rights and Freedoms. Regarding constitutional linguistic rights, see José Woehrling and André Tremblay, ‘Les dispositions de la Charte relatives aux langues officielles,’ in Gérald-A. Beaudoin and Errol Mendes, Canadian Charter of Rights and Freedoms – Charte canadienne des droits et libertés (Markham: LexisNexis Butterworths, 2005), 1025–91. 39 Canadian Charter of Rights and Freedoms, Section 20(2). 40 See n3 above. 41 Howard Leeson, ‘Section 33, the Notwithstanding Clause: A Paper Tiger?’ Choices 6/4 (Montreal: IRPP, 2000). 42 It is also true that minorities that contain a minority that is part of the majority at the national level may tend to use their position of power more often because they feel threatened.

This page intentionally left blank

PART THREE Federal–Provincial and Intergovernmental Relations in Canada

Especially since the early 1960s, there has been an upswing in Canadian researchers’ interest in federal–provincial and intergovernmental relations. With the rise of nationalism in Quebec and the emergence of regional movements in western Canada, analysts have been trying to understand the key concepts that give rise to such expressions of political views. Since the 1960s there has also been constant struggle between the Quebec government and the central government, although other members of the federation have had less difficulty in agreeing about how the federation will operate. However, this has not prevented the provinces of Alberta and Newfoundland and Labrador, among others, and the federal government from being at each others’ throats with res­pect to fisheries, natural resources, and access to health care services. In order to have a little elbow room within Canada and to assert its national specificity, Quebec has insisted on recognition of its right to be different, but the central government has been rather hesitant to make concessions, saying that it does not want to give Quebec extra privileges. However, the federal government has also been seeking to orient decision-making within member-states, and has even had the temerity to intervene in the provinces’ exclusive jurisdictions. The federal government does this using its spending power, which can be – and the central government does not hesitate to use it as – a coercive tool for forcing provinces to accede to priorities that it sets, even though the provinces, aside from Alberta, are overwhelmed by debts that have been growing since transfer payments to the provinces were cut. In recent years, urban concerns and the community sector have been gaining importance and continue to play a major role in politics. They provide golden opportunities for the central government to circumvent

252  Federal-Provincial and Intergovernmental Relations

the provinces, gain direct access to new players, and thus increase its allies. In Chapter 9, Alain-G. Gagnon reviews the issue of asymmetrical federalism in Canada and insists on the importance for Quebec to achieve constitutional asymmetry, which would secure recognition of some of its historical rights. Gagnon argues that establishing multinational federalism in Canada requires instituting and complying with constitutional asymmetry. Acknowledging that institutions and legislation are not neutral, Gagnon holds that adopting asymmetrical federalism would make it possible for Quebec to express its political preferences more effectively. Gagnon asserts that the frequent imposition of symmetrical federal practices leads to injustices for the Québécois, who are often required to accept government policies that are inconsistent with their values and social concerns. In short, asymmetrical federalism has the advantage of allowing the Québécois to express themselves more freely and gain greater recognition within the Canadian federation. In Chapter 10, Alain Noël discusses the various aspects of sharing financial resources in the Canadian federation, focusing on the political stakes underlying issues that are not simply technical. This chapter covers the fiscal imbalance but also social transfers, equalization, and the impact of oil money with respect to the various governments in Canada. Noël notes that until the early 1990s Canadian intergovernmental relations were dominated by constitutional issues. Since then the sharing of financial resources has gradually come to the forefront. There are huge stakes involved, not only with respect to the fiscal imbalance, but also concerning the many agreements on health care funding, the most recent of which dates from September 2004 and opens the door to asymmetrical federalism. There is also much on the line with respect to ongoing equalization reform and tensions arising out of growth in oil revenues in some provinces. All of these issues concern the way that resources are shared, the different visions of federalism in Canada, and the different communities that make up the country. Sarah Fortin argues, in Chapter 11, that the Social Union Framework Agreement (SUFA) was a turning point in federal–provincial relations with respect to social issues –– even though Quebec did not have the anticipated degree of influence when it was signed in 1999 by the federal government and all the provinces except Quebec. Fortin describes the primary factors that led to adoption of the agreement and the establishment of a discourse on the Canadian social union in the 1990s, and

Federal-Provincial and Intergovernmental Relations  253

then takes stock of the state of the social union in Canada in light of developments that have occurred since the SUFA came into effect. In Chapter 12, Yves Vaillancourt and Luc Thériault examine the links between the social economy, social policy, and Canadian federalism. They begin by drawing attention to two traditions in international research on the community sector: one places the accent on non-profitability, while the other focuses on the social economy. Next, Vaillancourt and Thériault look at the evolution of these two traditions in Canada over the past ten years, before going on to an assessment of child care services for preschool children, which have been at the heart of a debate concerning social policy, the social economy, and intergovernmental relations in Canada since 2003. Part 3 ends with a contribution from Luc Turgeon, who provides his reading of the role of municipalities in Canada’s intergovernmental system, in Chapter 13. He points out that Canadian cities have long been ignored by specialists of Canadian federalism and that most works on intergovernmental relations in Canada do not discuss the role of cities in the Canadian federation. Yet, Canadian cities are back near the top of the political agenda. Turgeon seeks to answer two questions: Why have Canadian cities once again become an issue in intergovernmental relations? How will recent changes in intergovernmental relations influence urban governance in Canada? Turgeon’s main thesis is that the rise of the urban issue in Canada is a sign of a gradual transition from a neo-liberal state to a social investment state.

This page intentionally left blank

9 Taking Stock of Asymmetrical Federalism in an Era of Exacerbated Centralization1 alain-g. gagnon

More than in most areas in the study of politics, scholarship on federalism tends to take on specific country-based characteristics. In the United States, for example, debate on federalism is largely rooted in the idea of the liberal state – limited government, checks and balances, avoidance of tyranny, etc.; in Germany and Australia, relatively homogeneous societies, it is seen more as a system of administration. And in multinational societies, such as Spain or Belgium it is seen as a device to permit minority nations a political space for their affirmation and protection and as an important means of managing intergroup conflict. The Canadian study of federalism also has some very country-specific dimensions. First, it dominates political discourse to an unusual degree. Second, it is highly contested –between Canadian nationalists, Quebec sovereignists, and western regionalists; and between centralists and decentralists. Third, and at the heart of many of these debates, Canada is both a multinational federation (Quebec, First Nations, and the rest of Canada) and a regionally diverse territorial federation. As political scientist Alfred Stepan has stated, ‘every single longstanding democracy in a territorially based multilingual and multinational polity is a federal state.’2 In short, federalism is said to possess essential qualities that contribute to the longevity of democratic political institutions. Often this is done by guaranteeing minority groups access to political institutions, by providing for redistribution of goods and resources, by balancing power between the centre and peripheries, or even by managing conflicts, usually through party politics or mediation of interests.3 Both proponents of symmetrical federalism and those promoting asymmetrical federalism raise fundamental questions with regard

256 Alain-G. Gagnon

to the management of diversity since they respectively draw on distinct political traditions: notably, territorial federalism associated with ‘nation-building’ and multinational federalism, established on the basis of a recognition of the legitimacy of its founding entities as the foremost markers of identity. Federal asymmetry constitutes a major political instrument that can go a long way in accommodating political claims made by minority nations in a democratic setting. However, this leads to an important caveat since a politics of accommodation will work as long as central institutions are willing to take seriously claims made by minority nations when making adjustments to the original compact, as well as ensuring that modifications are intended solely for the weaker partners in the agreement. In Quebec the model of territorial federalism is frequently rejected because it neglects what Charles Taylor calls ‘deep diversity,’ while limiting itself to policy proposals that apply throughout the territory in question (e.g., various harmonization programs). Former Quebec Liberal Party leader Claude Ryan has viewed this as ‘a rigid conception of Canadian unity … an abstract and doctrinaire vision of the equality of persons and of provinces.’4 This vision has been systematically denounced by the Quebec political class, regardless of partisan allegiances. In contrast, it has strong support among federal liberals. The model of multinational federalism has the advantage of valuing identity pluralism as well as soundly legitimizing national communities in the construction of the political subject. Moreover, it contributes to the flourishing of an actual culture, and in doing so, serves to enrich communitarian liberalism. This openness to pluralism concerns defenders of territorial federalism since they perceive that it may lead to potential pockets of opposition to their project of national construction, rather than as spaces of communitarian affirmation, as is the case in Belgium or Switzerland. My intention here is to highlight the normative characteristics of asymmetrical federalism, while Canadian nationalists seek to continue to pursue their project of undivided national construction, repudiating all possibilities for affirmation on the part of the nations that were original parties to the federal pact and undermining the process of deliberation. This chapter unfolds along three prongs: first, I briefly discuss definitions of federalism and assess their respective interpretative biases; second, I make some distinctions between symmetrical and asymmetrical

Asymmetrical Federalism in an Era of Exacerbated Centralism  257

federalism; and third, I explore three principles on which democratic political institutions are based, namely, the functional, the communitarian, and the democratic principles. The Concept of Federalism: Definition Most authors generally agree that federalism corresponds to an advanced institutional form that allows for the expression of democratic practices that are more elaborate and respectful of the general preferences of the diverse communities that co-habit the territory of a given nation-state. We recognize, in federalism, qualities associated with the respect for diversity, for jurisdictions, for the coordination of government activities, and for the autonomy of partners (member-states, the central government). Finally, federalism implies the non-subordination of powers. According to specialists, the federal formula allows for democracy to be exercised along more aptly delimitated geographical bases, as such reinforcing the representation and capacities of citizens at different levels. It is within the context of the respect for diversity that the principle of subsidiarity assumes full meaning. We need only think about the central place accorded to the notion of subsidiarity by the Tremblay Commission (1956) and the Pepin–Robarts Report (1979). While the concept itself was not explicitly employed by the Task Force on Canadian Unity, the notion is nevertheless implied throughout the report. Indeed, the authors specify that only the responsibilities that cannot be exercised by the member-states in an efficient and just manner are to be assumed by the central government.5 In Canada, the federal principle of non-subordination has been frequently attacked by representatives of central institutions. A study of decisions rendered by the Judicial Committee of the Privy Council (JCPC) in London, throughout its existence from the end of the nineteenth century until its replacement by the Supreme Court of Canada in 1949, serves clearly to convince us of the abuses of power by the central government. The British Lords did not hesitate to reprimand the central government throughout its frequent intrusions in areas of jurisdiction pertaining to the member-states of the federation.6 André Burelle, a former constitutional adviser of Pierre Trudeau, called attention in 1999 (during debates surrounding the Canadian social union) to numerous passages written by the British Lords that

258 Alain-G. Gagnon

confirmed the principle of non-subordination. Denouncing the imperialist and tutelary intentions of the central government of that era, the Lords wrote, in 1895: ‘The goal of the Constitution Act of 1867 was not to merge the provinces together as one, nor to subordinate the provincial governments to a central authority, but to create a federal government in which they would all be represented, and exclusively entrusted with the administration of matters in which they shared a common interest, with each province preserving its independence and its autonomy.’7 Beyond the notions of federalism and subsidiarity, our theoretical analysis must be furthered by exposing important distinctions between two forms of federalism: territorial and multinational federalism.8 Territorial federalism corresponds to the situation prevailing in Germany, in the United States, and as a model sought by many political actors in Canada. The division of powers takes shape along technical considerations without any serious concern for ethnocultural groups or national minorities, and with an assumption of the existence of one nation. In this view, the nation and the nation-state are interchangeable. Territorial federalism is thus a correlate of symmetrical federalism. All of the member-states are conceptualized as identical legal entities. Multinational federalism, in contrast, is found in nation-states marked by sociopolitical pluralism; Belgium, Switzerland, and Quebec view this model as embodying important qualities for the coexistence and development of nations. According to this approach, a justification for the sharing of powers proceeds from communitarian rights, with the appropriate aim of formal institutional recognition. Multinational federalism requires the establishment of an asymmetrical model of federalism in order to allow the diverse communities to offer their citizens the possibility to realize themselves completely, by emphasizing adjusted measures for the enrichment of contexts of choice for each of the major communities at the origin of the founding contract. Will Kymlicka reminds us, in Finding Our Way (1998), that ‘equality for individual citizens does not require equal powers for federal units. On the contrary, asymmetrical status for nationality-based units can be seen as promoting this underlying moral equality, since it ensures that the national identity of minorities receives the same concern and respect as that of the majority nation.’9 Several authors have explored the question of asymmetrical federalism. Political scientist David Milne contends that, considering the variable levels of influence exercised by member-states and the unequal resources at their disposal, the Canadian federation can be considered

Asymmetrical Federalism in an Era of Exacerbated Centralism  259

to be characterized by asymmetrical federalism. Inspired by very good intentions, Milne’s demonstration proceeds by gathering a set of economic, cultural, geographical, historical, juridical, and political criteria pertaining to each of the federated states to support his claims.10 This approach, however, is more like a catalogue rather than a profound study of the reasons justifying asymmetrical federalism that would permit member-states to exercise their specific powers to the best of their abilities.11 This type of analysis is echoed by Alain Dubuc, in an article evocatively titled ‘The Constraints of Uniform Federalism,’ published in the daily La Presse in which the editorialist argues that ‘Canada, as it has always been, is asymmetrical. The provinces are different, they occupy their fields of jurisdiction in very diverse ways, the role of the central government varies according to the provinces and its programs are rarely uniform. In its workings there is nothing orderly about the federation. It is, rather, a free-for-all.’12 Like David Milne, Quebec’s former minister of intergovernmental relations Benoît Pelletier has identified an imposing list of asymmetrical practices.13 He makes reference to the application of several articles of the Constitution, to a variety of administrative agreements and to certain fiscal arrangements as several differentiated types of asymmetry. For my part, I argue that such asymmetries can concretely take two forms. First, there are asymmetries of a constitutional and juridical nature (de jure), emphasizing the division of powers. Second, there are asymmetries of an administrative nature (de facto), which are more easily reversible. The latter correspond to agreements stemming from practical considerations or as the result of negotiated mutual agreements between representatives of the two orders of government. To this day, Quebec has demanded changes that are not easily reversible by proposing de jure modifications, yet it has been forced to accept agreements that could be modified according to current power relations, relations that tend to be unfavourable to Quebec. This has led to the confirmation of de facto agreements without any formal guarantees for the long term.14 This ongoing state of affairs convinced a significant number of Quebecers of the need to withdraw from the Canadian federation. In the Canadian context, if we exclude the articles of an asymmetrical nature already included in the Constitution Act of 1867 – e.g., Section 133 concerning the use of the English and French languages, Sections 93(a), 94, and 98 of the Constitution Act of 1867; paragraph 23(1) of the

260 Alain-G. Gagnon

Canadian Charter of Rights and Freedoms; and Section 59 of the Constitution Act of 198215 -- the scope of asymmetrical federalism has been essentially limited to agreements of a non-constitutional nature, for example, the Quebec Pension Plan (1964), the agreements on immigration (Cloutier/Lang, 1971; Bienvenue/Andras, 1975; Cullen/Couture, 1978;Gagnon-Tremblay/McDougall, 1991), manpower training (1997), and the Health Accord (2004). From a Quebec perspective, asymmetrical federalism, as it has been practised in Canada, has for the most part been seen by sovereignist activists as a strategy to demobilize nationalist forces and as paltry compensation for the all-too-frequent intrusions in the fields of jurisdiction exclusive to Quebec. Their contention can be summed up as follows: What good does it do to be satisfied by piecemeal powers when Quebec could have its own state capable of administering all of its responsibilities? As for the federalist forces present within Quebec, asymmetrical federalism is presented as a last hope, allowing for a revival of Quebecers’ confidence by pointing to the flexibility that, theoretically, can characterize federalism. In the absence of making permanent gains by way of constitutional modifications, supporters of federalism still believe in the possibility of finding a formula that is tailor-made for Quebec within the Canadian federation. However, such arrangements cannot become reality as long as fierce opposition to a full-blown version of asymmetrical federalism continues to manifest itself. Outside of Quebec, asymmetrical federalism has more often than not been denounced as presaging the erosion of the very foundations of the Canadian nation that is usually presented as ‘sea-to-sea’ and indivisible. Pierre Trudeau constantly rejected the principle of asymmetrical federalism, viewing it as an affront to the principle of equality (of provinces and of individuals). Moreover, his foremost concern was that it could result in the construction of a basis for legitimacy that would be favourable to the claims of Quebec’s autonomists and hard-core nationalists. Trudeau believed asymmetrical federalism would result in a fissure in the Canadian social fabric and in the implementation of exclusive privileges for Quebec. He would pass a good portion of his time with the Liberal Party of Canada to render this concept unpopular among Canadians.16 A loyal follower of Pierre Trudeau, Senator Serge Joyal made a calculated intervention following the signing of the Health Agreement of September 2004, in which he went so far as to predict the end of Canada if nothing was done quickly. A short extract suffices to illustrate the Senator’s concerns: ‘The project known as asymmetrical

Asymmetrical Federalism in an Era of Exacerbated Centralism  261

federalism contains within itself a confusing trait. It gives birth to the hope that stripping the federal government of its powers would ultimately strengthen the capacity of Quebecers to develop in accordance with their own particular genius. The dynamic created may hold attractions for some, but is no less pernicious for that. It gives legitimacy to the thesis that Quebec cannot be well served in Canada.’17 Several prominent non-francophone academic voices that value the intrinsic qualities of asymmetrical federalism have come to the fore in recent years, such as Jeremy Webber,18 Jane Jenson,19 and Will Kymlicka.20 Each has explored interesting avenues for the affirmation of a community of language, for the expression of two differentiated citizenship regimes, and for the re-establishment of links of trust between Quebec and the rest of Canada. From an institutional perspective, the almost forgotten contribution of the Task Force on Canadian Unity (the Pepin–Robarts Commission, 1977) demonstrated the advantages of this approach,21 only to see its recommendations pigeon-holed by the government of Pierre Trudeau. This leads me to some normative questions that I would like to further elaborate in my analysis. Normative Dimensions We can identify three basic principles upon which federalism in states that are characterized by deep diversity must operate, in ascending order of importance: the functional principle, the communitarian principle, and the democratic principle. The Functional Principle Arguments that are favourable to the application of the federal formula insist on emphasizing the capacity of the system to respond efficiently to the demands and needs of citizens, communities, associations, and groups inhabiting a vast territory. The classic approach in this area comes from England, where Kenneth C. Wheare, essentially justified the federal principle using functional arguments. For Wheare, governments elected by smaller regions are more likely to accurately and effectively reflect the expectations and needs of citizens and to establish more effective and responsible policies.22 In Canada, the Pearsonian era was characterized by its flexibility

262 Alain-G. Gagnon

with regard to Quebec’s demands, made manifest by the negotiated withdrawal of Quebec from some pan-Canadian governmental policies between 1963 and 1968. This was the period in which the Caisse de dépôt et placement was created, followed by the establishment of the Quebec Pension Plan. These projects were made possible by a certain openness on the part of the federal authorities to Quebec’s claims, while the Liberal Party of Canada formed a minority government. It was also the era of the Royal Commission on Bilingualism and Biculturalism (the Laurendeau–Dunton Commission), whose mandate was to find a solution to the mounting constitutional crisis. Nevertheless, it was only after the election of the Parti Québécois, with the establishment of the Pepin–Robarts Task Force in 1977, that discussions about asymmetrical federalism re-emerged, and again following the failure in 1990 of the Meech Lake Accord (Spicer Commission, Beaudoin–Dobbie Commission). It is as though every period of pronounced constitutional tension invariably leads to the same recommendations and proposals, which politicians subsequently refuse to act upon. More recently, with the election of a minority Liberal government in Ottawa, led by Paul Martin, the Liberals quickly took a step forward by presenting the September Health Accord in terms of asymmetrical federalism, and then a step back in the October 2004 negotiations concerning equalization, refusing to increase commitments in the face of significant pressures expressed by the provincial capitals (e.g., Ontario and Alberta to name two) and in the anglophone press, more generally. Recall, as well, that the functional principle has been frequently attacked by central authorities in Canada – by the Trudeau–Chrétien generation, for example – who feared the seeds of a creeping centrifugal impulse and a danger that existing pan-Canadian policies might crumble. Pierre Trudeau, Jean Chrétien, and others of a similar mind have never hesitated to restrain, limit, and distort the functional principle by employing the federal spending power. The Communitarian Principle At the very core of the theory of federalism, we find the idea developed by Althusius, Montesquieu, and more proximate to us, by Livingston,23 Tarlton,24 and Elazar,25 that the federal principle ought to reflect and enrich community sentiments that lie at the origin of the federal pact. The political project is thus not to eradicate these differences but to

Asymmetrical Federalism in an Era of Exacerbated Centralism  263

ensure that they are respected by representatives of the different communities, while facilitating the emergence of elements of shared interest. Respect for these basic conditions permits a consolidation of the bonds of trust between communities as well as nurturing a culture that is respectful of genuine pluralism. In the Canadian case, Jeremy Webber has recognized the presence of differentiated political communities and, following from this, has drawn important lessons for the accommodation of diversity. For Webber, public debates ought to take place in a common language in order to restrain tendencies that betray the very foundations of historical communities upon which the country was created. This requires the implementation of institutions that acknowledge and support this identity pluralism.26 The case of Switzerland offers useful lessons for Canada in the management of deep diversity. The founders of the Swiss federation sought to develop federal institutions that were favourable to the continuity of different linguistic communities and diverse religious traditions. Moreover, the cantons possess all of the sovereignty required in the area of linguistic legislation, helped in that capacity by the central government. They also enjoy full competence with regard to the recognition of formal citizenship for their residents.27 Inspired by the tradition of consociationalism, Belgium also has endowed itself with institutions that aim to recognize its communities by assigning them important powers, allowing for a better representation of citizens’ identities and interests. The Democratic Principle The democratic principle is necessary to any modern image of federalism that we adopt. Dating back to some early work undertaken by specialists of federalism, one constant that emerges is the potential for a federal state to group political communities together, on a regional basis, in order to enrich the demos. Authors have frequently viewed federalism as a novel approach meant to limit the tyranny of the majority over minority communities. The United States, inspired by territorial federalism, has instituted a system of checks and balances by emphasizing the separation of powers. The American tradition, which is very influential, has been enriched by other federal traditions found in Europe. Again, we can point to the contributions of Belgium and Switzerland.

264 Alain-G. Gagnon

The main question rests on the notion of legitimacy. To what extent can the member-states of the federation and the central government make the claim that they speak on behalf of all? Reginald Whitaker contends that federal systems draw their legitimacy from a more complex vision of representation, where certain issues are the responsibility of the federal entity while others belong to the member-states of the federation.28 In many cases, as we have underlined, the member-states are more effectively positioned to respond to the expectations of their citizens, while accessibility to the central government is more difficult. In The Spirit of the Laws (1750) Montesquieu (1689–1755), identified with the French Enlightenment, recognized that beyond their role as social actors, people are members of cultural groups, peoples, or nations. Indeed, he characterized the culture of a people as a ‘general spirit’: ‘Many things govern men: climate, religion, laws, maxims of the government, examples of past things, mores, and manners.’29 Moreover, Montesquieu emphasized the importance of small republics in protecting the liberty of citizens. With the goal of assuring people that the institutions adequately reflect their traditions, cultures, and the general will, Montesquieu opted for the small republic. He wrote: ‘In a large republic, the common good is sacrificed to a thousand considerations; it is subordinated to exceptions; it depends upon accidents. In a small one, the public good is better felt, better known, lies nearer to each citizen; abuses are less extensive there and consequently less protected.’30 Montesquieu’s thought also addressed the federated republic, which he saw as an advanced expression of democracy: ‘the federated republic … is an agreement convention by which many political bodies consent to become citizens of the larger state that they want to form. It is a society of societies […] the confederation can be dissolved and the confederates remain sovereign. Composed of small republics, it enjoys the goodness of the internal government of each one; and, with regard to the exterior, it has, by force of the association, all the advantages of large monarchies.’31 The ideas of Montesquieu, with regard to the advent of the federal republic, have echoed throughout the centuries. Pierre Joseph Proudhon (1809–1865) can probably be credited with most adequately developing these ideas, in Du principe fédéral et de la nécessité de reconstituer le parti de la révolution (1863), where he elaborated his theses on the necessity to limit central authority through the liberty of member-states and regions within large associations.32 For Proudhon, the federal principle thus allows, at once, for the coming together of communities under a single structure while preventing the possibility of a tyrannical government.

Asymmetrical Federalism in an Era of Exacerbated Centralism  265

Researches undertaken by francophone political scientists, although too often ignored by their anglophone colleagues in Canada, have dealt with the political uses of federalism as a way to consolidate the democratic principle and are making full use of the work done or inspired by Montesquieu, Proudhon, and pluralist federalists. A Breakthrough of Asymmetrical Federalism among Some Canadian Thinkers The Westphalian model of the nation-state remains popular in Canada outside Quebec, but it has been increasingly called into question in some Quebec circles.33 These challenges to the model are taking place both from below and from above. Theoretical advances with regard to the multination,34 as well as the emergence of multilevel democracy,35 illustrate the extent to which the Westphalian model is waning as a response to the expectations of the population. Several scholarly studies have broken with this orientation, however. Among the more forceful works on the normative value of asymmetrical federalism for Canada is a contribution by Jeremy Webber, who devoted a book on this question in the early 1990s. In Reimagining Canada, Webber makes the claim that all political communities that exist are structured around a common culture that allows for a common language, which serves to give meaning to deliberation and helps to achieve compromises around common challenges facing a given community. He notes that ‘when Canadians follow a political debate, they are usually following the version that occurs in their public language. When they care about the outcome of that debate, they do so in terms relating to the discussion they know […] As Durham saw in the 1830s, public debate is marked by a different culture, a different way of conceiving the issues, a different history of discussion, depending on the language in which the debate occurs.’36 Along a similar vein as Webber, Jane Jenson furthers the reflection by appealing for the emergence of spaces of deliberation that would encourage a renewal of Canada’s public language, in which democratic dialogue would be structured around the three concurrent collective projects. This effort at theorization by Jenson merits consideration since it contributes to analyses centred on multinational federalism as a possible avenue in achieving reasonable accommodation. ‘The acceptance of asymmetry in the name of three collective projects – Canada’s, Quebec’s and Aboriginal peoples’ – means installing at the heart of the current political debate three principles which the majority

266 Alain-G. Gagnon

of the country as well as its minority nations will have to accept. The first […] is that societies are greater than the sum of their parts […] The second principle of successful asymmetry is that loyalties do not need to be hierarchically arranged in order to be loyalties […] the third dimension [is a] commitment to widen citizen access, whether in the traditional forms of liberal democracy or otherwise […] the task is to identify institutional locales in which democratic dialogue can occur.’37 Two important conditions must be met in order for asymmetrical federalism to emerge in Canada. To begin with, it is necessary that the defenders of majority nationalism in Canada and Quebec accept that other collective projects can be elaborated legitimately. Moreover, no identity should be overly dominant at the expense of the recognition of the other. The advances in thinking about asymmetrical federalism are not without consequences for Quebec and for Aboriginal nations in particular. Aymmetrical federalism allows for a qualitative leap in terms of defending different expressions of liberalism, whether it is procedural or communitarian, and for the recognition of deep diversity. The recent works of Michael Ignatieff, including most notably The Rights Revolution, have contributed to initiating a turning of the tide in English Canada by assigning political legitimacy to the notion of constitutional asymmetry: ‘At the moment, might lies with the majority and right with the minority. Mutual recognition must rebalance the relationship, with both power and legitimacy finding a new equilibrium. Then, and only then, will we be able to live together in peace in two countries at once, a community of rights-bearing equals and a community of self-governing nations.’38 By opting for asymmetry, Ignatieff seems to have taken a critical distance from cosmopolitan thinkers and has lined up with liberal communitarians. He also demonstrates sympathy for and solidarity with the Quebec nation in claiming that ‘Quebec is entitled to recognition as a distinctive society, and its language laws, its immigration statutes, and education provisions should be different in order to protect what is different about the province.’39 Nationalism is no longer viewed as a narcissistic phenomenon. Rather, it is treated as an authentic and legitimate sociopolitical project. Conclusion In a world characterized by deep diversity, asymmetrical federalism

Asymmetrical Federalism in an Era of Exacerbated Centralism  267

represents a unique institutional construction that gives considerable flexibility in governance. Most forms of differentiated treatment in Canada are usually seen by a good number of Canadians outside of Quebec as an expression of unequal treatment, as privileges accorded to Quebecers. This same majority of Canadians is opposed to all expressions of even a minimally distinct status for Quebec. This was evident, among other instances, in the debates surrounding Quebec’s desire to apply the formula proposed by Paul Gérin-Lajoie for areas of provincial responsibility both internally and externally,40 as well as with the processes surrounding the Meech Lake (1987–90) and Charlottetown (1992) accords. Canadian nationalists have opposed the few initiatives that might have favoured the implementation of asymmetrical federalism in the country. In turn, they have spoken of a ‘slippery slope’ leading to Quebec secession, of privileges inspired by selfish interests of an ethnic group, of the expression of a resentful sentiment on the part of a minority nation, or else as a movement against modernity. Other Canadian authors stress potential secondary effects associated with the implementation of asymmetrical federalism, as they discuss a weakening of the central government’s leadership or the erosion of a common will. Finally, some authors have suggested that Quebec will still wish to exercise its influence in central institutions once powers have been granted to the province. This would confirm, according those authors, that Quebec’s appetite for power is insatiable. It is essential to keep in mind, as John McGarry has reminded us, that ‘virtually all of the states that experienced secession in the twentieth century were either symmetrical federations (e.g., the Soviet Union, Yugoslavia, Czechoslovakia) or unitary (the United Kingdom, Indonesia, Ethiopia).’41 This observation ought to contribute to attenuate opposition to asymmetrical federalism; however, it does little to demobilize its detractors. Some explanations could be found in their own nationalism. On the international front, it is worthwhile mentioning that the most advanced liberal democracies have not hesitated in implementing asymmetrical principles in order to translate political as well as sociological realities in a just manner; in cases where states are not federal in nature. France, the United Kingdom, Spain – all unitary states – have launched a series of initiatives in response to claims made by regionalist and nationalist movements. This, in turn, contributed to appease actors, and to allow Wales, Scotland, and Northern Ireland, as well as

268 Alain-G. Gagnon

historical nations in Spain (Catalonia, the Basque Country, Galicia), and New Caledonians, and more modestly, Corsicans to obtain political institutions that meet more closely their own expectations. Following the election of a minority Conservative government in Jan­ uary 2006, under the leadership of Stephen Harper, and its re-election in October 2008, it will be important to measure and assess his provincialist parti pris. It will also be essential to assess whether his actions grant the possibility for the provinces to fully assume their responsibilities, or rather if it constitutes a way for the central state to remove itself from its obligations with regard to the redistribution of collective resources. Under the concept of open federalism, Prime Minister Harper agrees to recognize provincial autonomy and in particular Quebec’s responsibilities in areas of culture. The Conservative leader states that he will grant a greater role to the provinces in their own spheres of jurisdiction on the international scene, putting forward the idea that Quebec will be empowered to participate in UNESCO under the formula developed for the Francophone Summit in the mid-1980s during the Mulroney years. In addition, Harper’s views are crystal clear with respect to the federal spending power, which he sees as an irritant, and considers that it ‘gave rise to domineering and paternalistic federalism,’ and led, as one of its principal consequences, to a fiscal imbalance. However, it remains to be seen if the open federalism advocated by Stephen Harper can provide answers to Quebec’s claims for recognition, although his approach to federalism has contributed to a significant breakthrough in Quebec, especially in the region of the national capital, shaking for a time the confidence of the Bloc Québécois. It is crucial that our examination of asymmetrical federalism as a condition for justice and political stability be further enriched and explored, above all to understand why political parties that take hold of power in Ottawa cannot produce policies that will have de jure repercussions. We feel that it constitutes a vice of the Canadian federal system that proves incapable of fully embracing its historical legacy to enter into a real multinational dialogue with Quebec, and on a larger scale, with the First Nations. The Canadian multination will materialize institutionally the day that asymmetrical federalism is perceived to be legitimate; it is thus worthwhile to defend this principle that contributes to a recognition of Quebec’s national diversity. At present, the main challenge is to address the recognition of Quebec according to its own terms – in the terms of a nation that is fully constituted. Still, as Kymlicka notes, ‘so long as English-speaking Canadians cling to this ideal of a unitary

Asymmetrical Federalism in an Era of Exacerbated Centralism  269

Canadian nationality, they will never accept the asymmetry implicit in a multinational conception of Canadian federalism.’42 To conclude, what lessons does this analysis of the Canadian experience have for the larger study of federalism? It stresses that Canadians and Quebecers tend to have distinct ways in assessing the institutions of federalism. Two models evolve side by side, a Canadian one that emphasizes territorial claims and a Quebec model that focuses on a plurality of national identities.43 Scholarship on these two approaches has grown significantly during recent decades, contributing to the development of two research traditions in Canada: one that insists on national diversity and justice – solidly grounded in Quebec; and another one, based on territory and stability, that is well rooted in the rest of Canada. The intention in this chapter has been to enrich Canadian debates by making sure that Quebec’s understanding of the travails of federalism is taken seriously by other Canadian scholars and specialists of federalism beyond Canada’s borders. Notes   1 The author wishes to thank James Bickerton, Raffaele Iacovino, John McGarry, and Richard Simeon for comments made on the first version of this chapter. An earlier version of this paper was presented in English before the Annual Meeting of the Canadian Political Science Association, at the University of Western Ontario, London, in June 2005, and, in French, at a symposium on Canadian federalism held at the Université du Québec à Montréal, in November 2004.   2 Alfred Stepan, ‘Federalism and Democracy: Beyond the U.S. Model,’ Journal of Democracy vol. 10/4 (1999): 19.   3 For a longer development with respect to political uses of federalism, see Alain-G. Gagnon, ‘The Political Uses of Federalism,’ in Alain-G. Gagnon and Michael Burgess, eds., Comparative Federalism and Federation: Competing Traditions and Future Directions (Toronto: University of Toronto Press, 1993), 15–44.   4 Claude Ryan, ‘La voie d’avenir: un fédéralisme asymétrique,’ Le Devoir (14 June 1999), A7; all translations are ours, unless otherwise indicated.   5 The Task Force on Canadian Unity, A Future Together, Observations and Recommendations (Pepin–Robarts Report) (Ottawa: Minister of Supply and Services Canada, 1979).   6 According to left-leaning intellectuals in Canada, the Judicial Committee of the Privy Council (JCPC) has led to the decentralization of the Canadian

270 Alain-G. Gagnon federation and is said to be partly accountable for some managerial problems at the time of the Dirty Thirties as well as during the Second World War. The same argument was served when the time came to establish an equalization formula towards the end of the 1950s.   7 Cited in André Burelle, ‘Mise en tutelle des provinces,’ Le Devoir (15 Feb. 1999), A7.   8 See Phillip Resnick, who refers to these two forms of federalism in ‘Towards a Multinational Federalism: Asymmetrical and Confederal Alternatives,’ in Leslie Seidle, ed., Seeking for a New Partnership: Asymmetrical and Confederal Options (Montreal: Institute for Research on Public Policy [IRPP], 1994), 71–89.   9 Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada (Don Mills: Oxford University Press, 1998), 141. 10 David Milne, ‘Equality or Asymmetry: Why Choose?’ in Ronald Watts and Douglas M. Brown, eds., Options for a New Canada (Toronto: University of Toronto Press, 1991), 285. Watts characterizes this form of asymmetry as ‘political’ while describing constitutional asymmetry in terms of variations in responsibilities between the member-states within a federation. See also his Comparing Federal Systems, 2nd ed. (Kingston: Institute of Intergovernmental Relations [IIGR], 1999). 11 It remains that Milne’s interpretation was very important during the discussions surrounding the Meech Lake Accord. His interpretation contributed to giving credit to Quebec’s claims and provided a response from political leaders who like Clyde Wells, then Premier of Newfoundland, felt that asymmetrical practices were simply illegitimate. 12 Alain Dubuc, ‘Le carcan du fédéralisme uniformisateur,’ La Presse (13 Nov. 2004), A23. 13 Benoît Pelletier, this volume. 14 See Alain-G. Gagnon and Joseph Garcea, ‘Quebec and the Pursuit of Special Status,’ in Randy D. Olling and Martin W. Westmacott, eds., Perspectives on Canadian Federalism (Scarborough: Prentice-Hall, 1988), 304–24. 15 Gérald Beaudoin ‘La philosophie constitutionnelle du rapport PepinRobarts,’ in Jean-Pierre Wallot, eds., Le débat qui n’a pas eu lieu: La commission Pepin-Robarts, quelque vingt ans après (Ottawa: Les presses de l’Université d’Ottawa, 2002), 86. 16 The Progressive Conservative Party of Canada, under the leadership of Robert Stanfield, Joe Clark, and Brian Mulroney successively, was more inclined to accept its intrinsic qualities and felt it contained the foundations for all serious constitutional reform. See Chapters 2 and 3 in James Bickerton, Alain-G. Gagnon, and Patrick Smith, Ties that Bind: Parties and Voters in Canada (Don Mills: Oxford University Press, 1999).

Asymmetrical Federalism in an Era of Exacerbated Centralism  271 17 Serge Joyal, ‘What Kind of a Country Do We Want?’ Gazette (31 Oct. 2004), D8. 18 Jeremy Webber, Reimagining Canada (Montreal: McGill-Queen’s University Press, 1994). 19 Jane Jenson, ‘Recognising Differences: Distinct Societies, Citizenship Regimes and Partnership,’ in Roger Gibbins and Guy Laforest, eds., Beyond the Impasse: Toward Reconciliation (Montreal: IRPP, 1998), 215–40. 20 Kymlicka, Finding Our Way. 21 Members of the commission specified, however, ‘that there are limits to the degree of constitutional asymmetry that can be tolerated without producing disruptive effects.’ Pepin–Robarts Report, 87. 22 Kenneth C. Wheare, Federal Government, 4th ed. (New York: Oxford University Press, 1964), 39–52. 23 William S. Livingston, ‘A Note on the Nature of Federalism,’ Political Science Quarterly 67 (March 1952): 81–95. 24 Charles D. Tarlton, ‘Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation,’ Journal of Politics 27 (1967), 861–74. 25 Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama, 1987). 26 Webber, Reimagining Canada, 183–228. 27 Wolf Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies (London: Macmillan, 1994), 22. 28 Reginald Whitaker, A Sovereign Idea (Montreal and Kingston: McGillQueen’s University Press, 1992), 167. 29 Charles de Secondat, baron de Montesquieu, The Spirit of the Laws, translated and edited by Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone, Part 3, Book XIX, chapter 4 (Cambridge: Cambridge University Press, 1989), 310. 30 Ibid., Part 1, Book VIII, chapter 16, 124. 31 Ibid., Part 2, Book IX, chapter 1, 131–2. 32 Cf Dimitrios Karmis, ‘La tradition fédérale moderne et le dilemme unitédiversité: Contribution à une théorie de la citoyenneté fédérale et interculturelle,’ Doctoral dissertation, McGill University, 1998. 33 Admittedly, there is a Quebec fringe that wishes to maintain it if Quebec were to become independent. 34 Alain-G. Gagnon and James Tully, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001). 35 Geneviève Nootens, Désenclaver la démocratie: Des huguenots à la paix des Braves (Montreal: Québec Amérique, 2004). 36 Webber, Reimagining Canada, 204–5. 37 Jenson, ‘Recognising Differences,’ 232–4.

272 Alain-G. Gagnon 38 Michael Ignatieff, The Rights Revolution (Toronto: Anansi, 2000), 84. 39 Ibid., 120. 40 For a solid discussion of the Gérin-Lajoie doctrine, refer to Stéphane Paquin, ed., Le prolongement externe des compétences internes: Les relations internationales du Québec depuis la doctrine Gérin-Lajoie (Quebec: Les presses de l’Université de Laval, 2006). 41 John McGarry ‘Asymmetrical Federalism and the Plurinational State,’ position paper delivered at the Third International Conference on Federalism, Brussels, 3–5 March 2005, 11, available at http://www.federalism2005.be/fr/home/index/, accessed on 2 March 2006. 42 Kymlicka, Finding Our Way, 143. 43 For a fully developed interpretation of Quebec’s commitment to a multinational conception of federalism, refer to Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007).

10 Balance and Imbalance in the Division of Financial Resources* alain noël

The biggest difference between Trudeau and me in federal-provincial affairs was that he wanted to win the arguments but was willing to let the provinces run off with the cash, while I was happy to concede the arguments but wanted to keep the cash. Jean Chrétien, Straight from the Heart1

Until the beginning of the 1990s, Canadian intergovernmental relations were dominated by constitutional questions. The division of powers, the amending formula, Senate reform, the Charter, and more generally, the politics of identities and recognition monopolized attention. The distribution of financial resources within the federation obviously remained important, but it appeared either as an administrative and technical question or as just one more constitutional issue. The equalization program, for instance, was made constitutional in 1982 to ensure its permanence. In a similar manner, what the federal government called its ‘spending power’ was the object of constitutional propositions during the negotiations about the Meech Lake and Charlottetown accords. As with most issues, financial problems always seemed to lead back to constitutional politics. The failure of the Charlottetown Accord in 1992 signalled the end to this era. A year later, the Liberal Party took power with a commitment not to talk about the constitution and to focus instead on creating jobs. Subsequent events, however, soon changed the situation for the new government. First, the victory of the Parti Québécois in 1994 placed Ottawa on the defensive on national unity. Second, the state of public finances pushed the Chrétien government to emphasize deficit reduction rather than employment and led it to undertake a major revision of

274 Alain Noël

federal transfer payments to the provinces. As the window on constitutional questions was being closed almost definitively, a new one on the division of financial resources opened up at the forefront. The issues in this respect are multiple, important, and complex. They involve, obviously, fiscal imbalance, a problem that became the object of a wide consensus across the country and that all federal political parties ended up acknowledging. They include as well the various agreements on health care financing, notably the 2004 agreement, which opened the door to asymmetrical federalism, the ongoing debate on the reform of equalization, and the tensions created by the growth of oil revenues in a few provinces. All of these questions concern the way in which financial resources are shared within the Canadian federation, between the two orders of government, and among the provinces and territories themselves. More fundamentally, these financial questions oppose different visions of federalism and of the communities that make up the country, ranging from a centralist model privileging an undifferentiated community to a decentralized conception favouring the autonomy of provinces and territories on a more or less symmetrical basis. This chapter examines these different aspects of the division of financial resources in the Canadian federation and stresses the underlying political dimensions of questions that are not simply technical. The analysis seeks to demonstrate how significant political choices are made, often in a discrete, even hidden, manner through modifications to the main programs that govern this division of financial resources. The golden rule of fiscal federalism, experts often remark, paraphrasing a well-known formulation, is that who has the gold rules. The chapter begins with a brief review of the principles associated with the division of financial resources in a federation. This review emphasizes, in particular, the importance of maintaining a correspondence between the division of powers and the sharing of resources, a correspondence that does not prevent different forms of redistribution between the orders of government or among federated entities. The second section deals with the Canadian experience and compares three distinct periods since the end of the Second World War: a first period goes from 1940 to 1977 and it is dominated by direct federal transfers to citizens and by shared-cost programs; a second period, from 1977 to 1995, gives rise to federal block transfers to the provinces, associated with pan-Canadian standards; and the last period, which started in 1995, is defined by deficit reduction, the social union, and fiscal imbalance. The third section of this chapter examines key issues for the

The Division of Financial Resources  275

coming years, and notably recent responses to fiscal imbalance and the growth of revenue disparities between the provinces. Principles In a federative state all the component parts should, on their own initiative and on their own responsibility, be able to procure for themselves through taxation the financial resources needed for the exercise of their respective jurisdictions. For, if that is lacking, the system loses its federative character. Royal Commission of Inquiry on Constitutional Problems (Tremblay Commission)2

Maurice Croisat, a French political scientist, proposes a definition that, in a few words, perfectly summarizes federalism. ‘A federation,’ he writes, ‘is based on a constitution that integrates separate communities within the same juridical framework, and defines the principles of their autonomy and of their participation to federal institutions.’3 Three major principles are involved, explains Croisat. First, there is the principle of separation, which implies that the sovereignty of the state is shared between two orders of government, as stipulated by a constitutional division of powers. Second, the principle of autonomy, which states that there is no hierarchy, control, or supervision between the two orders of government, since each order is sovereign in the jurisdictions established by the constitution. In light of this second principle, one should avoid vertical metaphors such as the notion of ‘levels’ to describe the orders of government of a federation, precisely because these are not in a hierarchical relationship. Finally, the principle of participation assumes a representation and an implication of federated entities in the making of federal decisions. Often this participation is assured through a second legislative chamber that is representative of the federated entities. In Canada, where the Senate has become an outdated institution with little legitimacy, such participation is achieved mostly through intergovernmental relations. The division of financial resources concerns primarily the autonomy principle. To be autonomous, a federated entity must dispose of its own revenues, and be able to exercise its jurisdiction without requiring transfers from the federal government, transfers that are always susceptible to being accompanied by conditions. In a classical and often cited statement on this question, British constitutionalist Kenneth C.

276 Alain Noël

Wheare explains that, for the federal principle of autonomy ‘to operate not merely as a matter of strict law but also in practice,’ each order of government must have ‘under its own independent control financial resources sufficient to perform its exclusive functions.’4 As the quotation that opens this section indicates, the Royal Commission of Inquiry on Constitutional Problems (Tremblay Commission), created by the Quebec government in 1953, did not see things any differently from this. In principle, then, the division of financial resources should correspond to the division of powers, to preserve the autonomy of the two orders of government. The autonomy principle does not preclude the redistribution of revenues within the federation since the federal government can reduce disparities between the provinces through the exercise of its own constitutional powers, as is the case, for instance, with the equalization program, with employment insurance, or with regional development initiatives. The autonomy principle, however, is never simple to implement. For one thing, it is not possible to define exactly what are the financial resources ‘necessary’ for the exercise of the jurisdictional powers of each government. Regardless of the area, the ‘necessary’ expenditures can only be determined through the political process, where the preoccupations of voters and the orientations of political parties are confronted with the concrete problems to be solved. In addition, other principles may run counter to the idea of autonomy, and force arbitrations that would also be inherently political. Economists, for instance, grant much importance to the search for equity and efficiency in a federation. Economic theory is generally favourable to federalism insofar as the division of powers and the resulting decentralization assure a better fit in each region between the preferences of citizens and public policy, while facilitating informed decision-making, innovation, and accountability. Decentralization can also have costs, however, in terms of equity and efficiency. From the point of view of equity, too much decentralization could worsen the disparities between regions and between citizens.5 As for efficiency, the problem is associated with the poor allocation of resources that could result from excessive differences in the net fiscal benefits offered by each province, as well as from the unintended effects on other governments of policies adopted by a federated entity or by the federal government (what economists call externalities). In a recent review of the literature, Canadian economist Robin Boadway acknowledges that it is very difficult to draw clear operational conclusions from concepts that remain

The Division of Financial Resources  277

abstract and poorly connected to real practices and institutions, and he admits that such conclusions necessarily rest on the analyst’s judgment and values.6 Boadway nevertheless concludes that it appears desirable in a federation to maintain a fiscal imbalance in favour of the federal government, to enable this government to promote equity among regions and citizens and to preserve the efficiency of the economic union.7 In this respect, he shares the dominant viewpoint in English Canada, which favours a centralized management of interdependence, even if this implies compromising the autonomy principle. To the principle of autonomy privileged by Wheare and by the Tremblay Commission can thus be opposed another principle, appealing to solidarity and efficiency. This latter principle has been defended as well by a royal commission, the Rowell–Sirois Commission, created by the federal government in 1937. As François Rocher explains, in his contribution to this book, the tension between these two principles has defined most of the debates that have shaped the Canadian federation since the Second World War. In a recent analysis, Robin Boadway and Keith Banting attempt to reconcile these two principles by proposing to understand Canada as a set of sharing communities associating province-wide or territory-wide communities, where most social policies are defined, with a larger federal sharing community assuring a minimum of equity and comparability among regions.8 This perspective is not without interest but it is more evocative than operational and does not really overcome the opposition defined by the principles of autonomy and of solidarity/ efficiency, especially in a multinational federation like Canada, where the quest for autonomy also concerns identity.9 While it is important to clarify principles, the analysis of federations is not easily amenable to formalization and cannot be reduced to a few simple rules. Richard Bird, a Canadian economist who has contributed significantly to the study of this question, notes that there is simply no conceptual or quantitative shortcut that would make it possible to bypass a careful reading of the history and institutions of each federation.10 In other words, the tension that exists between the two principles discussed here must be acknowledged, but there is no formula that would offer a definitive resolution of this tension, valid in all cases. Concrete implementation also has its importance. Federations rest on real or imagined historical pacts, and they create shared rules that the different governments must follow. This implies, of course, that the division of powers and revenues enshrined in the constitution should

278 Alain Noël

be respected. Above the legal framework, however, the division of resources should also be based on established, known, and stable formulas, to avoid the central government deciding ‘the amount of transfer on a discretionary basis.’11 Clear and public rules prevent arbitrary decisions, make public policies more transparent, increase accountability, and reduce uncertainty. Such rules also enhance confidence in the intergovernmental relations process, a factor that has been waning in Canada in recent years.12 The three principles at the core of federalism define specific imperatives regarding the division of resources. To the principles of separation and autonomy correspond the idea of an equilibrium between the constitutional division of powers and that of revenues, while the principle of participation in federal institutions creates expectations with respect to equity and efficiency, as well as demands for clarity and transparency in intergovernmental relations. In practice, of course, the implementation of these three principles always poses problems, because they remain very general and partly contradictory. Practices What would be the good of a careful distribution of legislative powers, if one of the governments could get around it and, to some extent, annul it by its taxation methods and its fashion of spending? Royal Commission of Inquiry on Constitutional Problems (Tremblay Commission)13

From the beginning, the Canadian federation was a compromise. In a famous speech given to the Legislative Assembly of the United Province of Canada, John A. Macdonald explained that, even if he personally preferred a union with ‘one government and one parliament, legislating for the whole of these peoples,’ he had to recognize that such a union ‘would not meet the assent of the people of Lower Canada,’ whose ‘language, nationality and religion’ were different from those of the majority and should be recognized and protected.14 In this context, the founders wanted at least to ensure a strong federal government, and to this aim they allocated what they saw as the most important powers to the federal government, along with a power of disallowance granting the federal government the possibility of vetoing a provincial law (this power was frequently used in the beginning, but it was strongly contested by the provinces and eventually eliminated).

The Division of Financial Resources  279

With financial resources, the same logic prevailed. The British North America (BNA) Act of 1867 gave the federal government the right to levy all forms of taxation, while provinces only had the right to levy indirect taxes such as licences, permits, rights on public lands, taxes on the sale of goods and services, and property taxes.15 Income taxes, which would later become the predominant mode of taxation, were left accessible to both orders of government. Income taxes, however, did not exist at the time, and for many years they remained seen as ‘an inadequate means to which past experience and the public thinking are peremptorily opposed.’16 The key element in the BNA Act was rather the allocation to the federal government of duty and excise taxes, which represented close to 80 per cent of government revenue at the time.17 The resources left to the provinces were, in fact, so modest that from the outset transfers from the federal government had to be adopted to allow provincial governments to function. The Canadian federation’s first decades thus displayed ‘a constant wrangle between mendicant provinces and a stingy federal government, each haggling over a few thousand dollars in grants.’18  In the following decades, provinces nevertheless gained in autonomy, as they used new modes of taxation that compensated for inadequate federal transfers. These new taxes – on the sale of goods and alcohol and the registration of automobiles, for instance – turned out to be fragile in the face of economic downturns, and provincial revenues declined dramatically during the Great Depression of 1929–39, just as needs were jumping up. Thus weakened, provincial governments accepted at the beginning of the Second World War a constitutional amendment that allowed the federal government to adopt a law introducing a federal unemployment insurance program (1940). They also agreed to temporarily cede to Ottawa their share of personal and corporate income taxes (1942). In terms of financial resources, the 1942 tax rental agreement was particularly significant. With this agreement, the provinces abandoned all control over direct taxation, and gave back to the federal government the pre-eminent role in the division of resources. The 1942 agreement was supposed to be a temporary arrangement, to allow the federal government to finance the war effort. The laws associated with this agreement were very explicit in this regard. The Quebec legislation, in particular, underlined the fact that the province shall not ‘be deemed to have surrendered, abandoned or given over to the Dominion any of the powers, rights, privileges or authority vested

280 Alain Noël

in the Province under the provisions of the British North America Act, 1867.’19 At the end of the war, however, the federal government decided to extend the agreement, something that all provinces accepted except Quebec and Ontario. To accommodate these two recalcitrant governments, Ottawa conceded them a part of the federal tax on personal income and on successions.20 This is how the common notion of ‘tax points’ was born. This idea only makes sense in the context of an integrated fiscal space defined by the federal government, which sets the overall level of taxes and can therefore determine the respective share of each government. In 1947, for instance, 5 points of the personal income tax (5% of federal income taxes) were given to the Quebec and Ontario governments under the form of an ‘abatement.’ The two provinces did not use this fiscal space immediately, but in 1954 the government of Maurice Duplessis introduced a provincial income tax equivalent to 15 per cent of federal taxes, forcing Ottawa to withdraw the year after, and increase the federal abatement for Quebec from 5 to 10 points.21 At the time, it was really in terms of tax points that the debate over the division of resources could be understood. In 1971 the federal government and the provinces agreed to drop the idea of an integrated fiscal space, to allow each government to determine its own level of taxation, on the basis of the revenue defined by the federal government. In practice, the two orders of government continued to coordinate and negotiate their fiscal policies, a necessity reinforced by the fact that the federal government still collected taxes for all provinces except Quebec.22 The division of resources nevertheless became less rigid and less understood in terms of tax points with a clearly defined value. With the creation of the Canada Customs and Revenue Agency in 1999, a further step was taken in this direction, to allow provinces to determine their own tax structures (something that obviously Quebec was already doing). Rather than taking a defined proportion of the federal tax (‘tax on tax’), the provinces determined their own brackets and taxation rates on the basis of the revenue defined by the federal agency (‘tax on income’). Alberta, for instance, created a flat tax of 10 per cent, which distanced it significantly from other provinces where personal income taxes remained progressive and could reach rates of almost 18 per cent (24% in Quebec).23 Overall, there was a diversification of tax structures across the country, reflecting the varying objectives and priorities of the different governments.24 In these circumstances, the notion of ‘tax points’ no longer had much sense because the idea of an integrated and fixed fiscal space that the

The Division of Financial Resources  281

two orders of government could divide and share had disappeared. One should speak instead of a recurrent debate over the effective occupation of the different taxation fields by each order of government. The increased fiscal autonomy of provincial governments implied that a growing proportion of their revenue came from their own sources. In 1960 the federal government received 60.8 per cent of all tax revenues in Canada, compared with 21.8 per cent received by the provinces, and 17.3 per cent by the municipalities. Federal transfers then accounted for almost 30 per cent of provincial revenues. In 2004 federal revenues had decreased to 38.7 per cent of total tax revenues, with 42.1 per cent going to the provinces and 11.7 per cent to local governments (the remaining 7.5% was associated with contributions to the Canadian Pension Plan and the Quebec Pension Plan). The share of federal transfers in provincial revenues had dropped to 15 per cent.25 As is explained below, federal transfers also became less conditional with time. At first glance, the federation seems to have decentralized. Provincial governments now collect more of their own revenues, at rates and with brackets that they choose, and they are less dependent on conditional federal transfers.26 The situation, however, is not this simple. To gain a better understanding, one must go over the same story, looking now at the spending side. At the end of the Second World War, the state played a relatively modest role in Canada. After a burst associated with the war effort, the expenditures of all Canadian governments fell back to 24.2 per cent of gross domestic product (GDP) in 1950, a level just above half of what governments spend now (42.2% of GDP in 2004).27 Even the Great Depression of the 1930s had not been sufficient to displace a liberal social and political model that privileged the market, laissez-faire, and private and local charity.28 The Depression and the war nevertheless sowed the seeds of change. The political context began to change during the 1940s. The labour movement grew and became a significant political force and the Cooperative Commonwealth Federation (CCF), the ancestor of the New Democratic Party (NDP), made progress, taking power in Saskatchewan, and pushing the federal Liberal Party to the left. In Canada, as elsewhere in the Western world, new ideas circulated in favour of policies to stabilize the economy, to support the income of workers and their families, and to improve social services. As we have seen, the federal government now had most of the revenues and, in a context where economic growth and employment were high, the hour of the welfare

282 Alain Noël

state had arrived. Change was neither dramatic nor sudden, but it followed a well-defined path that James Rice and Michael Prince have described as a pattern of directed incrementalism.29 The federal government began with income support, using direct transfers to individuals. Unemployment insurance was created in 1940, family allowances in 1944, and old-age security in 1951. For unemployment insurance and pensions, the jurisprudence was clear and forced Ottawa to obtain constitutional amendments before legislating in areas of provincial jurisdiction. In the case of family allowances, the federal government simply invoked its ‘spending power’ and offered cheques to families, which were not conditional and, in theory, could be refused. Proceeding rapidly, the Mackenzie King government created a fait accompli that the provinces could not easily resist. The Quebec government, notably, half-heartedly opposed a program that did intrude on provincial jurisdiction but proved very popular with the public.30 These three programs created a direct link between citizens and the federal government, and they established universal foundations for social protection in Canada, with social rights potentially accessible to all citizens. At first these new rights remained circumscribed and rather limited, but they would become more accessible and generous over time, especially after the reforms of the 1960s and 1970s.31 During the same period, in 1957, the first equalization measures were introduced, to allow the less wealthy provinces to offer comparable services to their population at taxation rates similar to those of the richest provinces. As dominant as it was in revenues and administrative capacity, the federal government could not go very far in social policy without the collaboration of the provinces because social services were clear provincial jurisdictions. As a result, a second mode of intervention emerged: shared-cost programs. Introduced in 1912, but little used during the first half of the twentieth century, these types of programs multiplied after the Second World War. The idea was for the federal government to commit to pay a part of the costs incurred by a provincial government (usually half) on the condition that the provincial program respected precise standards determined by Ottawa. Through this means, the federal government intervened to promote professional training and postsecondary education, public health and health services, urban and rural development, social services, and social assistance. Often, provinces took the first initiatives, as was the case with Saskatchewan and hospital insurance and medicare. Ottawa promoted the diffusion of social policy innovations and facilitated the harmonization of programs as it financed the development of pan-Canadian measures and standards.

The Division of Financial Resources  283

From 1940 to the 1970s the federal government was thus dominant both in terms of revenues and of expenditures and it was able to impose an integrated model of social protection with more or less universal transfers to individuals, equalization measures to level conditions across provinces, and shared-cost programs to support the development of post-secondary education, health care services, social services, and social assistance. The term collaborative federalism is sometimes used to describe this period, but this collaboration took place on the basis of very unequal relations between the federal government and the provinces, relations that followed a vertical more than a federal logic. The Quebec government consistently opposed this centralist orientation, to assert its autonomy and preserve its jurisdictions. This situation began to change in the 1960s. In Quebec the Quiet Revolution and the modernization of the state gave rise to new expectations. Rather than opposing a passive resistance to federal intrusions in the name of the political and social status quo, the Quebec government defined its own project of social transformation and demanded to opt out with compensation from shared-cost programs with the aim of developing its own social policies, better suited to the specific needs of the province. At the beginning of the 1960s, the federal government showed some openness and allowed Quebec to withdraw with full financial compensation from some shared-cost programs. At the same time, the Quebec government created its own Quebec Pension Plan (QPP), in parallel to the Canadian Pension Plan (CPP). This openness soon reached its limits, however, with the arrival to power of Pierre Elliott Trudeau, who opposed all forms of special status for Quebec. The main changes to the financing and definition of social programs came later, when a general demand for more autonomy on the part of the provinces met with a federal willingness to disengage financially from such programs. Just as the provincial governments were modernizing and gaining fiscal autonomy, the federal government saw its debt increase, in a context of economic slowdown, inflation, and growing social expenditures. In these circumstances, shared-cost programs increasingly appeared to be a heavy and unnecessary constraint that reduced the control of both orders of governments on their expenditures. In 1977 governments agreed to replace almost all shared-cost programs (except the Canada Assistance Plan [CAP], which involved social services, and a number of small programs in the areas of regional development, official languages, agriculture, and transportation) by a block transfer called established programs financing (EPF).32 Provinces gained in flexibility since most conditions were eliminated, and the

284 Alain Noël

federal government reduced its financial commitment, as it ceased to attach its level of expenditures to provincial social policy decisions. To maintain its authority and some visibility in social policy, the federal government adopted the Canada Health Act in 1984, which imposed specific standards on provinces, enforced by financial penalties. In practice these penalties were rarely applied.33 Still, the idea of ‘national standards’ was effective politically, and an equilibrium seemed preserved, to maintain the arrangements established in earlier years. One should keep in mind as well that during these years, from 1976 to 1992, the attention of citizens and politicians was captured by national unity and the constitutional debate. Indeed, this period began with the election of the Parti Québécois and ended with the referendum on the Charlottetown Accord. Hence, to the era of collaborative federalism, marked by direct federal transfers to citizens and shared-cost programs (1940–77), succeeded a period of transition characterized by block transfers and the definition of ‘national standards’ (1977–95). Provinces then gained both in capacity and in autonomy. Many saw the era as one of ‘province-building.’ The federal government nevertheless maintained an important role, through direct transfers to citizens, some remaining shared-cost programs (notably for social assistance and social services), and through block transfers associated with ‘national standards.’ Shortly after the election of Jean Chrétien’s Liberal government in 1993, the need to tackle the deficit became predominant. Confronted with rising interest rates and downward pressures on the Canadian dollar, especially after the Mexican peso crisis of December 1994, the new federal government decided to make deficit reduction a priority.34 In February 1995, Finance Minister Paul Martin presented a pivotal budget, which imposed major cuts in federal expenditures and a reconfiguration and dramatic reduction in transfers to provinces. The established programs financing (EPF) and the Canada Assistance Plan (CAP) were then merged into a new and less generous program called the Canadian Health and Social Transfer (CHST). In one swift move, without established rules for the future growth and division of this new block transfer, the federal government reduced its transfers to the provinces by $6 billion, as they went from $18.5 billion in 1995–96 to $12.5 billion in 1997–98.35 For the period 1994–95 to 2001–02 the cumulative effect of these cuts represented a reduction of $36.9 billion for the provinces.36 For Quebec the effect was even more pronounced because, starting in 1999, the allocation of CHST funds no longer took into account social

The Division of Financial Resources  285

needs, which penalized provinces who used to receive more from the Canada Assistance Plan. Very quickly the federal government achieved a balanced budget, and it began to register ever-increasing surpluses. This budgetary turnaround, however, was achieved ‘on the backs of the provinces’ to use the expression of economist Thomas Courchene.37 This was the central paradox of the period that began in 1995. In a sense the provinces became more autonomous since they depended less on federal transfers and relied more on their growing own source revenues. At the same time, provincial governments remained strongly constrained by expenditures that proved difficult to contain, notably in health care, and they struggled to maintain balanced budgets just as the federal government accumulated large surpluses that could be used to increase spending both on its own programs and on programs within provincial jurisdictions. With time, the division of revenues has been modified in favour of the provinces, but not sufficiently to keep pace with the costs associated with the powers of each order of government. As the well-known formula states: the money was in Ottawa, the needs were in the provinces. From this point onwards, the fiscal imbalance took centre place in Canadian intergovernmental relations. Issues There are mornings when I want to give them money, and then the next morning I say no. We will see in the next budget. Jean Chrétien, in La Presse38

The February 1995 federal budget imposed draconian cuts to federal transfers to the provinces, but it announced as well a major reform of unemployment insurance (renamed employment insurance). This reform decreased the proportion of unemployed persons eligible to receive unemployment insurance from 83 per cent in 1989 to 42 per cent in 1997, just as the program generated a massive surplus.39 For the provincial governments this reform also had consequences, as some of the unemployed persons not covered under the new regime ended up using provincial social assistance.40 Confronted with this abrupt shift in federal policies, provincial governments decided to cooperate and initiated a joint revision of social programs. The provinces demanded, in particular, a greater respect for the division of powers in the federation, and the introduction of collaborative decision-making processes and dispute settlement mecha-

286 Alain Noël

nisms to prevent further unilateral federal reforms.41 The debate on the social union had begun. Sarah Fortin provides a full treatment of this question in this book. Suffice it to say that this debate did not solve anything. Signed without Quebec, the Social Union Framework Agreement (SUFA) of February 1999 did not establish effective rules or mechanisms and, in the years that followed, did nothing to prevent unilateral federal decisions. In fact, the agreement has rarely been invoked and it has become practically obsolete.42 The debate shifted instead to health care financing, and there again it tended to end up with more or less unilateral decisions, and sometimes with ‘take it or leave it’ offers from the prime minister.43 The problem goes beyond decision-making processes or the funding of health care, and concerns the whole division of financial resources in the federation. This is what led the Quebec government to create the Commission on Fiscal Imbalance in the spring of 2001. Chaired by former Liberal revenue minister Yves Séguin, the commission was mandated to analyse the causes and consequences of the fiscal imbalance between the federal government and the provinces, and to propose solutions to correct the situation.44 While it is not possible to present here all of the elements of the commission’s report, it is useful to consider its main arguments and update some of its core findings. The first task of the Séguin Commission was to define the notion of fiscal imbalance. The concept is not unanimously accepted and it is not easy to operationalize. First, one must distinguish the notion of fiscal imbalance from the concept of vertical fiscal gap, frequently used in economics. A vertical fiscal gap is simply a gap between the autonomous revenues of a government and its expenditures, which is corrected by transfers from another government. In other words, a vertical fiscal gap is identical to the level of transfers, whatever this level is. Easy to measure and normatively neutral, the concept of vertical fiscal gap does not correspond to the idea of a fiscal imbalance, which refers to an unsatisfactory gap, or even a dysfunction in the finances of a federation.45 To assess such a situation, the commission started from the principle outlined above, which posits that in a federation each order of government should possess sufficient autonomous revenues to assume the expenditures related to its jurisdictions. A vertical fiscal gap may exist, but it should not be so important that it threatens the autonomy of federated entities. In other words, there is a fiscal imbalance when the vertical fiscal gap becomes excessive. A fiscal imbalance can also be associated with the inadequate or conditional character of the transfers

The Division of Financial Resources  287 Figure 10.1. Projections of the Budgetary Balances of the Federal and Quebec governments, 2001–02 to 2019–20 (in $billions). 90 80

Canada

Quebec

70 $Billions

60 50 40 30 20 10 0 -10

2001–02 2004–05 2007–08

2010–11 2013–14 2016–17 2019–20

Source: Commission on Fiscal Imbalance, Report, 20.

meant to fill the vertical fiscal gap. To sum up, three conditions are necessary for the finances of a federation to be balanced: (1) the vertical fiscal gap must remain modest, (2) transfers must correct this vertical fiscal gap adequately, and (3) these transfers must not be conditional. If these conditions are not met, then a fiscal imbalance exists. Fiscal imbalance is not easily measured because it refers to revenues and expenditures that governments should have, given the division of powers. Only the political process, however, can determine the level of expenditures that a province should devote, for instance, to heath care. To avoid this problem, one must consider different indicators that provide information on the evolution of budgetary balances, revenues, and expenditures for each order of government, as well as on the trends in transfer payments. The most striking of these indicators was certainly the projection of budgetary balances for the federal and Quebec governments produced for the Séguin Commission by the Conference Board of Canada. Figure 10.1 presents this indicator, which tells much about the trends that were then at play. Based on a status quo scenario for fiscal and budgetary policy and on prudent hypotheses regarding the evolution of expenditures, this pro-

288 Alain Noël

jection indicated what would have happened, all things being equal, if the current division of resources had been maintained. The federal government would have produced ever-growing surpluses, while the Quebec government would have posted only deficits. The Conference Board obtained similar results for all provinces and territories.46 Later updates confirmed the validity of these initial conclusions.47 In reaction to these projections, the federal government argued that it was absurd to pretend that public policy would remain static for twenty years. This argument was beside the point because the goal of such projections was not to predict the future but precisely to understand what would happen if nothing changed. The federal minister of finance made similar projections in 2002 and predicted federal surpluses even larger than those forecast by the Conference Board of Canada.48 What mattered here was not the exact estimations, which were obviously approximate, but the untenable character of the trends at work. The same tendencies were observed in the following years. Between 1997 and 2008 the federal government consistently obtained budgetary surpluses while introducing new programs and expenditures, reducing taxes, and repaying its debt. During the same period, the provinces generally ran deficits or small surpluses, with the exception of Alberta, whose situation was exceptional.49 How could this imbalance between the two orders of government be explained? In terms of resources, the federal government had an advantage because the largest part of its revenue came from personal income taxes, where growth was more rapid than in other taxation fields.50 This advantage, however, was not large and did not constitute the primary cause of fiscal imbalance.51 The problem was rather found on the spending side. Expenditures rose faster in the provinces than in Ottawa because the responsibilities of the two orders of government were not the same. As Figure 10.2 illustrates, federal program spending was devoted mainly to transfers to individuals and provinces, whereas 75 per cent of the Quebec government’s program spending went to the provision of governmental services. Almost a third of federal program spending was devoted to transfers to individuals, through old-age security (20% in 2000–01) and employment insurance (10%) in particular. Even with the predicted aging of the population, the future evolution of these transfers did not pose a problem for the federal government. The costs of old-age security, notably, would rise only moderately. The coming to maturity of the Canada Pension Plan, of the Quebec Pension Plan, and of private pension plans

The Division of Financial Resources  289 Figure 10.2. Program Spending of the Federal and Quebec Government, 2000–01. Federal Government ($119 348 million)

Government of Quebec ($41 991 million) Transfers 25%

Others 31%

Transfers 69%

Others 75%

Note: Program spending does not include debt-servicing charges. Source: Commission on Fiscal Imbalance, Report, 31.

tended to reduce pension costs for the federal government. In fact, of all the countries in the Organization for Economic Cooperation and Development (OECD), Canada’s old-age security regime was the most sustainable in the medium term.52 With respect to employment insurance, the reforms of the 1990s had greatly reduced costs and had even made the program a source of revenue – and not expenditures – for the federal government, to the point that the auditor general expressed concern. Every year after 1999, she repeated that the government did not respect the ‘spirit of the employment insurance law’ by generating unjustified surpluses, which cumulated to a total of $48 billion in 2005.53 As for transfers to the provinces, which represented approximately 20 per cent of federal program spending, we saw how they were dramatically reduced after 1995. Improvements were made in recent years but in real terms, as a proportion of gross domestic product, they remained inferior in 2005–06 to what they were in 1993–94, while the social expenditures of provinces had increased.54 These transfers also remained largely at the discretion of the federal government, which controlled their evolution. In the provinces, the situation was very different. In 2005–06, for instance, the Quebec government devoted nearly 43 per cent of its program spending to health care and social services and another 25 per

290 Alain Noël

cent to education, recreation, and sports.55 In both cases, the demand for services was strong and the maintenance and development of institutions and systems imposed fixed costs over which the government had little control. In health care, in particular, technological development and demographic and social changes increased costs, in Quebec as elsewhere in Canada and throughout the world. Between 2003–04 and 2005–06, health care spending in Quebec grew by 5.2 per cent compared with 2.8 per cent for education and 2.5 per cent for other government programs. The 2006–07 budget provided for even larger increases in health (6.3%) and in education (5.4%) combined with a freeze on spending on all other programs (-0.2%).56 To these increases, should be added debt-servicing charges that tended to rise in the provinces while they fell for the federal government, with recurrent surpluses making it possible to pay down the debt.57 Contrary to what Jean Chrétien suggested in 2002, it was not ‘because there has been a better administration in Ottawa than in Quebec over the past years’ that the financial situations of the two orders of government were different.58 The provinces faced expenditures whose growth was strong and unavoidable, and this was simply not the case for Ottawa. The vertical fiscal gap between the federal government and the provinces had become too wide. Federal transfers did not correct this excessive vertical fiscal gap adequately. Just as the provinces faced growing costs associated with the exercise of their jurisdictions, the federal government, which did not face such pressures, had severely cut its transfers. With the CHST in 1995, Ottawa also introduced a discretionary transfer that did not progress according to an established formula or in relation with the evolution of social needs. Insufficient, federal transfers also proved inadequate. Until 2004 the situation was different for the other large federal transfer program, equalization. Contrary to social transfers, which were justified by a contested federal ‘spending power,’ equalization was constitutionally entrenched and was explicitly a federal jurisdiction. Section 36(2) of the Constitution Act of 1982 states that ‘Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.’ 59 Until 2004 equalization payments were also governed by a clear and transparent, if somewhat complex, formula. The problem then had to do with the methods established by the federal government to limit the cost of the

The Division of Financial Resources  291

program. Indeed, equalization rights were established not by comparing the fiscal capacity of all ten provinces, an approach that would have produced a distribution pattern in conformity with the objectives stated in the Constitution, but rather by taking into account only five ‘representative’ provinces (Quebec, Ontario, Manitoba, Saskatchewan, and British Columbia). Excluding Alberta from the calculation allowed the federal government to reduce its financial engagements, but it also contradicted the logic of the program. Technical problems also arose with respect to the definition of tax fields, for property taxes in particular. Any response to fiscal imbalance, thus, also had to address the weaknesses of the equalization program. Finally, the Commission on Fiscal Imbalance dealt with the ‘spending power’ invoked by the federal government to justify its interventions within provincial jurisdictions (through direct transfers to individuals, conditional transfers to provinces, direct expenditures, or tax expenditures). Noting that this ‘power’ was not grounded in the constitution or in jurisprudence, the commission emphasized the problems associated with the use of an instrument that is not constitutionally established and contradicts the division of powers at the heart of the Canadian federation. In recent years, a large part of the federal government’s surplus has been used to intervene, directly or indirectly, in areas of provincial jurisdiction. The federal government has made no secret of this situation and had regularly announced federal priorities in domains of provincial jurisdiction such as health care, day care, and post-secondary education.60 The Paul Martin government (2003–06) did not address fiscal imbalance. In fact, the situation may have worsened. True enough, social transfers to the provinces were improved, particularly in the area of health care. In September 2004 the federal government substantially increased its contribution for health care (now contained in a specific transfer called the Canadian Health Transfer [CHT]) and promised to raise this contribution by 6 per cent a year for the next ten years.61 These increases, however, barely followed the progression of provincial health care spending, which had been rising at a rate of 7 per cent for several years, and the federal government remained free to reverse its decision in the coming years.62 In addition, the other portion of federal social transfers, now called the Canadian Social Transfer (CST) suffered from the priority given to health care, and was not the object of a clear federal engagement.63 The equalization program followed a similar evolution. After the

292 Alain Noël

establishment of the five-province standard, the total value of the program gradually had declined, going from 1.17 per cent of GDP in 1982 to 1.01 per cent in 2000. If the ten-province standard had been maintained such a decline would not have happened.64 Starting in 2000, this decrease was accentuated and led to a level of just 0.8 per cent in 2005.65 This last reduction, which can be explained primarily by the weakness of economic growth in Ontario, contributed to the opening of a new round of discussions on the program. 66 In October 2004 the Martin government announced a ‘new framework’ for equalization that improved payments in the short term but also changed radically the program’s structure. Before the implementation of this framework, both the total amount of equalization payments and the attribution of rights to the provinces were determined by the application of a formula comparing differences in provincial fiscal capacities. With the Martin framework, the total amount of equalization payments was to be determined by the House of Commons, and only the division of equalization payments remained defined by a formula. In the short term, this reform could seem advantageous for the provinces because it promised to increase the level of equalization by 3.5 per cent a year for ten years (a rate that remained below the predicted growth of federal revenues and of GDP). The new framework, however, made equalization more discretionary, and it left the federal government free to decide the total amount of equalization without the constraint of an established formula. Because it made total payments a fixed amount, this framework also placed provinces in competition with one another. With a closed envelope, the gains of one province could only come from the losses of others.67 This logic of discretion and competition was soon apparent with the signature of bilateral agreements allowing Newfoundland and Labrador and Nova Scotia to exclude their oil royalties from the calculation of their equalization rights, and giving Saskatchewan and British Columbia the opportunity to see their rights calculated on a different, and more advantageous, basis. These bilateral agreements, which allowed some provinces to avoid seeing their economic growth affect their equalization rights contradicted the principle at the heart of the program.68 In its report, made public in March 2002, the Commission on Fiscal Imbalance estimated that, in the short term, provinces needed $8 billion in additional revenues. Rather than increasing social transfers, which would remain discretionary and poorly connected to the distinct social needs of the provinces, the commission recommended abolishing these

The Division of Financial Resources  293

transfers and ceding to provinces the fiscal room necessary to compensate for this abolition and make up the shortfall identified in the report. Comparing a reallocation of personal income taxes and changes in consumption taxes, the commission concluded that the simplest, most stable, and most adequate solution, given the disparities in provincial revenues, would be to cede all of the goods and services tax (GST) to the provinces. Such an arrangement would make it possible to reduce the vertical fiscal gap to an acceptable level, to eliminate inadequate social transfers, and to restore the autonomy of provincial governments. The commission also recommended a reform of the equalization program to return to the ten-province standard and re-establish the logic of the representative tax system, with an adequate assessment of all revenues and the elimination of bilateral agreements. Finally, the commission reiterated Quebec’s traditional opposition to the use of the federal ‘spending power,’ to do indirectly what the Constitution forbids the federal government to do directly, and it recommended the establishment of more open and transparent collaborative mechanisms among governments. The initial reaction of the federal government to the Séguin Commission’s Report was very negative, to the point of even denying the existence of a fiscal imbalance on the ground that provinces had access to almost all of the same revenue sources as the federal government has.69 A broad consensus on the existence of a fiscal imbalance nevertheless emerged among provincial governments, federal opposition parties, and most Canadian experts, as well as in the public in Quebec and Canada. The debate gradually shifted towards solutions. First, in March 2006, came the report of the Advisory Panel on Fiscal Imbalance created by the Council of the Federation. Initiated by the provinces, this panel concurred that there was indeed a fiscal imbalance in the federation, but proposed improved transfers rather than a new division of fiscal resources. Then, in May, followed a more specific report produced by the Expert Panel on Equalization and Territorial Formula Financing established by the Martin government, which did not address fiscal imbalance but made recommendations on the equalization formula that were not unlike those of the Quebec commission. The panel proposed, in particular, a return to a ten-provinces formula and the inclusion of all revenue sources, with only 50 per cent of the revenues from non-renewable natural resources, however.70 In the December 2005 to January 2006 federal electoral campaign, the Conservatives made a commitment to address fiscal imbalance, and

294 Alain Noël

they reiterated this commitment once in power. The main reforms came with the March 2007 budget. Social transfers were improved and made more stable, and the equalization program was put back on solid foundations with a clear formula based on ten provinces and including most revenue sources except 50 per cent of non-renewable resource revenues, as recommended by the Expert Panel. Because they were distributed on a per capita rather than on a needs basis, improved social transfers benefited mostly Ontario and Alberta. Quebec, however, gained additional revenues from a more rational equalization program. Focused on transfers, the 2007 budget did not address, however, the fiscal gap between the two orders of government, which remained wide. The federal ‘spending power’ was also left aside, presumably for a future reform. The financial situation of the provinces was thus improved,71 but a fiscal imbalance remained in the federation, leaving provincial governments dependent on decisions taken in Ottawa. Conclusion Good tax systems, like good government, require careful cultivation, and continuing attention’ Richard Bird, World Bank72

In the 1990s the arrangements governing the division of resources in the Canadian federation deteriorated. The fiscal gap between the federal government and the provinces became too large, social transfers were cut abruptly and then restored in a largely discretionary manner, and the equalization program became a more arbitrary and less effective redistribution mechanism. The symptoms of the resulting imbalance were numerous. From 1999–2000 to 2004–05 expenditures to support the federal government increased by 8.6 per cent a year, which on average represented a growth of 50 per cent per department.73 During the same period, the program spending of the Quebec government increased practically by less than half this rate, for a total growth of 25.9 per cent, with most of this growth attributable to health care and social services.74 In several areas of provincial jurisdiction – post-secondary education and income security for families, for instance – Ottawa preferred to introduce its own programs instead of improving transfers.75 While the federal government spent generously and rapidly reduced its debt, provincial governments struggled to maintain balanced budgets, reduced spending in nearly all areas except health care, and remained

The Division of Financial Resources  295

unable to diminish their debt loads. Meanwhile, with rising natural resources prices, revenue disparities between the provinces increased, and the equalization program became less and less successful in realizing its constitutional objective, which was to allow all provinces to offer comparable services at comparable levels of taxation. Intergovernmental relations suffered from these imbalances and from the discretionary character of federal policies. In the absence of rules and clear orientations, confidence waned and cooperation receded, against unilateralism and confrontation. In the 2000s a broad discussion ensued on the fiscal imbalance that marred the federation. When it came to power in 2006, the government of Stephen Harper took steps to redress the situation, mostly by increasing and stabilizing social transfers and by reforming the equalization program. In just a few years, provincial governments saw their financial situation improve. The broader problem of fiscal imbalance, however, did not disappear. The federal government continued to accumulate important budgetary surpluses and to intervene in areas of provincial competence, largely because the fiscal gap between Ottawa and the provinces was left unaddressed. The principles outlined at the beginning of this chapter suggest three necessary conditions for a successful revision of the sharing of resources within the Canadian federation. First, the division of powers and provincial autonomy must be respected, which requires a better distribution of revenues to avoid an excessive vertical fiscal gap. Second, the need for economic and social integration, the search for efficiency, and the desire to preserve some solidarity within the federation demand the maintenance of a fair equalization program, which constitutes a challenge when disparities among provinces increase, even though in the past the program has enjoyed the almost unconditional support of Canadian citizens.76 Finally, the establishment of stable, clear, and transparent rules should be favoured, to promote accountability, predictability, and cooperation. Concretely, such a reform could be accomplished through the formal ceding of the goods and services tax (GST) to the provinces. This was one of the main recommendations of the Commission on Fiscal Imbalance, and the idea has been endorsed by many experts in Quebec and the rest of Canada, as well as by the Canadian Council of Chief Executives.77 Other avenues could also be envisioned. A working paper of the C.D. Howe Institute, for instance, suggested a reallocation of tax fields that would encompass both personal income taxes and sales taxes. 78

296 Alain Noël

The idea of focusing solely on social transfers also has many proponents in Canada.79 From the point of view presented here, however, this solution remains less satisfactory. As Richard Bird suggests, in a federation such questions are never completely resolved. Economic change and political dynamics ensure that the division of resources needs to be regularly revisited. The aim is not to find a definitive solution, which in any case is impossible, but rather to remain open to discussions and negotiations and accept that, in a federal state, financial arrangements demand constant attention and a capacity to recognize and accommodate different conceptions of the political community and of social justice. Notes   * I am grateful to Alain-G. Gagnon and François Vaillancourt for their comments and suggestions. I thank as well David McGrane for his help with the translation.   1 Jean Chrétien, Straight from the Heart (Toronto: McClelland and Stewart, 1985), 156.   2 Royal Commission of Inquiry on Constitutional Problems (Tremblay Commission), Report, vol. 3, book 2 (Quebec: Government of Quebec, 1956), 196.   3 Maurice Croisat, Le fédéralisme dans les démocraties contemporaines, 3rd ed. (Paris: Montchrestien, 1999), 25.   4 Kenneth C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963 [1946]), 93.   5 This effect, however, is far from clear. See Robin Boadway, ‘Recent Developments in the Economics of Federalism,’ in Harvey Lazar (ed.), Canada: The State of the Federation 1999/2000 – Toward a New Mission Statement for Canadian Fiscal Federalism (Montreal and Kingston: McGill-Queen’s University Press, 2000), 65.   6 Ibid., 42–3 and 46.   7 Ibid., 74.   8 Keith Banting and Robin Boadway, ‘Defining the Sharing Community: The Federal Role in Health Care,’ in Harvey Lazar and France St-Hilaire (eds.), Money, Politics and Health Care: Reconstructing the Federal–Provincial Relationship (Montreal and Kingston: Institute for Research on Public Policy [IRPP] and Institute of Intergovernmental Relations [IIGR], 2004), 40.   9 Alain Noël, ‘Social Justice in Overlapping Sharing Communities,’ in Sujit Choudhry, Jean-François Gaudreault-Desbiens, and Lorne Sossin (eds.),

The Division of Financial Resources  297 Dilemmas of Solidarity: Rethinking Redistribution in the Canadian Federation (Toronto: University of Toronto Press, 2006), 67–8. 10 Richard M. Bird, ‘On Measuring Fiscal Centralization and Fiscal Balance in Federal States,’ Environment and Planning C: Government and Policy 4/4 (1986): 402. 11 Robert D. Ebel and Serdar Yilmaz, ‘Concept of Fiscal Decentralisation and Worldwide Overview,’ in Quebec, Commission on Fiscal Imbalance (Séguin Commission; hereafter QCFI), Report, Supporting Document 3: Texts Submitted for the International Symposium on Fiscal Imbalance (hereafter Doc. 3) (Quebec: CFI, 2002), 148, available at www.desequilibrefiscal.gouv. qc.ca. 12 Harvey Lazar, ‘Trust in Intergovernmental Fiscal Relations,’ in Harvey Lazar (ed.), Canadian Fiscal Arrangements: What Works, What Might Work Better (Montreal and Kingston, McGill-Queen’s University Press, 2005), 26–30. 13 Royal Commission of Inquiry on Constitutional Problems (Tremblay Commission), Report, vol. 2 (Quebec: Government of Quebec, 1956), 217. 14 John A. Macdonald, in P.B. Waite (ed.), The Confederation Debate in the Province of Canada, 1865 (Toronto: McClelland and Stewart, 1963), 40–1. 15 QCFI, Report, Supporting Document 1: Fiscal Imbalance in Canada: Historical Background (hereafter Doc. 1) (Quebec: CFI, 2002), 9–10, available at www. desequilibrefiscal.gouv.qc.ca. 16 Speech of MNA Lucien Cannon in Quebec’s Legislative Assembly, 12 Nov. 1913. Quoted in ibid., 12. 17 Ibid., 10. 18 Wilfrid Eggleston and C.T. Kraft, quoted in David P. Perry, Financing the Canadian Federation, 1867 to 1995: Setting the Stage for Change, Canadian Tax Papers, no. 102 (Toronto: Canadian Tax Foundation, 1997), 7. 19 Quoted in QCFI, Doc. 1, 27. 20 Perry, Financing the Canadian Federation, 38–44. 21 Ibid., 53; CFI, Doc. 1, 31–3. 22 Ibid., 46–7. 23 Richard M. Bird and François Vaillancourt, ‘Changing with the Times: Success, Failure, and Inertia in Canadian Federal Arrangements, 1945–2002,’ in Jessica Wallack and T.N. Srinivasan (eds.), Federalism and Economic Reform: International Perspectives (Cambridge: Cambridge University Press, 2006), 189–248; Karin Treff and David P. Perry, Finances of the Nation 2005: A Review of Expenditures and Revenues of the Federal, Provincial, and Local Governments of Canada (Toronto: Canadian Tax Foundation, 2006), 3.11, available at www.ctf.ca/FN2005/CHAP03.pdf.

298 Alain Noël 24 Geoffrey Hale, The Politics of Taxation in Canada (Peterborough: Broadview Press, 2002), 324–36. 25 Calculation of the author, using data from Treff and Perry, Finances of the Nation 2005, B:6. 26 Richard M. Bird and Duan-jie Chen, ‘Federal Finance and Fiscal Federalism: The Two Worlds of Canadian Public Finance,’ Canadian Public Administration 41/1 (1998): 67. 27 Treff and Perry, Finances of the Nation 2005, B:6. 28 Keith Banting, ‘Canada: Nation-Building in a Federal Welfare State,’ in Herbert Obinger, Stephan Leibfried, and Francis G. Castles (eds.), Federalism and the Welfare State: New World and European Experiences (Cambridge: Cambridge University Press, 2005), 101. 29 James J. Rice and Michael J. Prince, Changing Politics of Canadian Social Policy (Toronto: University of Toronto Press, 2000), 66. 30 Banting, ‘Canada,’ 106 ; Yves Vaillancourt, L’évolution des politiques sociales au Québec, 1940–1960 (Montreal: Les presses de l’Université de Montréal, 1988), 380–1; Dennis Guest, The Emergence of Social Security in Canada (Vancouver: UBC Press, 1980), 132. 31 Rice and Prince, Changing Politics, 66–78. 32 François Vaillancourt, ‘Federal–Provincial Small Transfer Programs in Canada, 1957–1998: Importance, Composition and Evaluation,’ in Lazar, Canada, 189–212. 33 Colleen M. Flood and Sujit Choudhry, ‘Strengthening the Foundations: Modernizing the Canada Health Act,’ Discussion Paper no. 13, Commission on the Future of Health Care in Canada [Romanow Commission], Ottawa, August 2002, 17–19, available at www.hc-sc.gc.ca/english/pdf/ romanow/pdfs/13_Flood_E.pdf. 34 Edward Greenspon and Anthony Wilson-Smith, Double Vision: The Inside Story of the Liberals in Power (Toronto: Doubleday, 1996), 168–70 and 235–6. 35 Ibid., 238 ; Thomas J. Courchene, ‘Half-Way Home: Canada’s Remarkable Fiscal Turnaround and the Paul Martin Legacy,’ Policy Matters 3/8 (2002): 23, available at www.irpp.org. 36 QCFI, Report: A New Division of Canada’s Financial Resources (hereafter A New Division) (Quebec: CFI, 2002), 81, also available at www.desequilibrefiscal.gouv.ca. 37 Courchene, ‘Half-Way Home,’ 33. 38 La Presse, 16 Jan. 1999, B3; our translation unless otherwise indicated. 39 Applied Research Branch, Strategic Policy, An Analysis of Employment Insurance Benefit Coverage, Document W-98-35E (Ottawa: Human Resources Development Canada, Oct. 1998), 13, available at www11.hrsdc.gc.ca/en/ cs/sp/hrsdc/arb/publications/research/1998-000128/w-98-35e.pdf.

The Division of Financial Resources  299 40 QCFI, A New Division, 47; Tom McIntosh and Gerard W. Boychuk, ‘DisCovered: EI, Social Assistance and the Growing Gap in Income Support for Unemployed Canadians,’ in Tom McIntosh (ed.), Federalism, Democracy and Labour Market Policy in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2000), 65–158. 41 Alain Noël, ‘General Study of the Framework Agreement,’ in Alain-G. Gagnon (ed.), The Canadian Social Union without Quebec: Eight Critical Analyses (Montreal: IRPP, 2000), 13–14. 42 Alain Noël, ‘Power and Purpose in Intergovernmental Relations,’ in Sarah Fortin, Alain Noël, and France St-Hilaire (eds.), Forging the Canadian Social Union: SUFA and Beyond (Montreal: IRPP, 2003), 53–5, 1–3. 43 Alain Noël, France St-Hilaire, and Sarah Fortin, ‘Learning from the SUFA Experience,’ in Fortin et al., Forging, 1–3. 44 The members of the commission were Anne-Marie d’Amours, Renaud Lachance, Andrée Lajoie, Nicolas Marceau, Alain Noël, and Stéphane Saintonge. The point of view presented in this chapter is obviously that of the author. 45 QCFI, A New Division, 17. See also on this question: Harvey Lazar, France St-Hilaire, and Jean-François Tremblay, ‘Vertical Fiscal Imbalance: Myth or Reality?’ in Lazar and St-Hilaire, Money, Politics and Health Care, 151. 46 Conference Board of Canada, Fiscal Prospects for the Federal and Provincial/ Territorial Governments (Ottawa: Author, July 2002), 30, available at www. conferenceboard.ca. 47 Ibid., updated, Feb. 2004, 31; and Aug. 2004, 32, available at www.conferenceboard.ca. 48 Alain Noël, ‘“A Report That Almost No One Has Discussed’: Early Responses to Quebec’s Commission on Fiscal Imbalance,’ in Lazar, Canadian Fiscal Arrangements, 133. 49 France St-Hilaire, ‘Écarts et déséquilibres fiscaux: la nouvelle donne du fédéralisme canadien,’ Policy Options 26/8 (2005): 28–9, available at www. irpp.org. 50 QCFI, A New Division, 54–6. 51 St-Hilaire, ‘Écarts et déséquilibres fiscaux,’ 30; Ottawa, Standing Committee on Finance (SCF), Report of the Subcommittee on Fiscal Imbalance: The Existence, Extent and Elimination of Canada’s Fiscal Imbalance (hereafter SCF, Report) (Ottawa: House of Commons, June 2005), available at http://cmte. parl.gc.ca/Content/HOC/committee/381/fina/reports/rp1914208/ finarp13/03-cov2-e.htm. 52 John Myles, ‘The Maturation of Canada’s Retirement Income System: Income Levels, Income Inequality and Low-Income among the Elderly,’ cat. no. 11F00MPE-147 (Ottawa: Statistics Canada, 2000), 1–4, available at

300 Alain Noël www.statcan.ca. Gerard Boychuk, ‘The Canadian Social Model: The Logics of Policy Development,’ Research Report F36, Family Network (Ottawa: Canadian Policy Research Networks, 2004), 13 and 29, available at www. cprn.org. 53 Office of the Auditor General of Canada, Report of the Auditor General to the House of Commons (hereafter AG, Report) (Ottawa: House of Commons, 2005), chapter 8, 24, available at www.oag-bvg.ca. 54 St-Hilaire, ‘Écarts et déséquilibres fiscaux,’ 34; SCF, Report, 13. 55 Gouvernement du Québec, 2006–2007 Budget; Budget Plan (Quebec: Ministère des Finances, March 2006), Section 2, 27, available at www.finances. gouv.qc.ca. 56 Ibid., Section 3, 21. 57 St-Hilaire, ‘Écarts,’ 30. 58 Jean Chrétien, quoted in Jean-Robert Sansfaçon, ‘Cet homme qui nous méprise,’ Le Devoir, 11 Oct. 2002, A8. 59 Constitution Act, 1982, Section 36(2). 60 St-Hilaire, ‘Écarts,’ 34; Comité de révision des programmes fédéraux, Un siècle d’intrusions: les dépenses intrusives du gouvernement fédéral dans les champs de compétence du Québec et des provinces, vol. 2 (Ottawa: Bloc Québécois, March 2004), 4 and 25–6, available at www.bloc.org. 61 During the same meeting, the federal government also accepted a very modest asymmetry within the federation by allowing the government of Quebec to present its own indicators on waiting times and health services, a question that in any case is of provincial jurisdiction. See Alain Noël, ‘Déblocages?’ Policy Options 25/10 (2004): 48, available at www.irpp.org. 62 St-Hilaire, ‘Écarts,’ 32. 63 Luc Godbout and Karine Dumont, ‘Mettre cartes sur table pour résoudre le déséquilibre fiscal,’ Submission to the SFI of the Standing Committee on Finance of the House of Commons, Chaire de recherche en fiscalité et en finances publiques, Université de Sherbrooke, April 2005, 26–7, available at www.usherbrooke.ca/adm/recherche/chairefiscalite/publications/cahiers/. 64 Alex S. MacNevin, The Canadian Federal–Provincial Equalization Regime: An Assessment, Canadian Tax Paper no. 109 (Toronto: Canadian Tax Foundation, 2004), 200 and 216; Ronald H. Neumann, ‘Submission to the Expert Panel on Equalization,’ Submission to the Expert Panel on Equalization and Territorial Formula Financing, Ottawa, July 2005 (hereafter Submission to the Expert Panel), 6, available at www.eqtff-pfft.ca/francais/submissions.asp. 65 J. Patrick Gannon, ‘Responses to the Key Questions on Equalization Raised

The Division of Financial Resources  301 by the Expert Panel on Equalization,’ Submission to the Expert Panel, 2, available at www.eqtff-pfft.ca/francais/submissions.asp. Luc Godbout and Suzie St-Cerny, ‘La réforme fédérale proposée de la péréquation: le mauvais remède pour l’un des organes vitaux du fédéralisme fiscal canadien,’ ibid., 16. 66 Expert Panel on Equalization and Territorial Formula Financing, Key Issues for the Review of Equalization and Territorial Formula Financing, Ottawa, 31 March 2005, 15, available at http://www.eqtff-pfft.ca/english/issuespaper0.asp; Michael Smart, ‘Some Notes on Equalization Reform,’ Submission to the Expert Panel, ibid., 6. 67 Alain Noël, ‘De la formule à l’enveloppe,’ Policy Options 26/1 (2004–05): 67–8, available at www.irpp.org. Godbout and St-Cerny, ‘La réforme fédérale proposée de la péréquation, 23–7. 68 Godbout and St-Cerny, ‘La réforme fédérale,’ 27–9. 69 Noël, ‘A Report That Almost No One Has Discussed.’ 70 For details, see Alain Noël, ‘When Fiscal Imbalance Becomes a Federal Problem,’ in Charles M. Beach, Michael Smart, and Thomas A. Wilson, eds., The 2006 Federal Budget: Rethinking Fiscal Priorities (Montreal and Kingston: McGill-Queen’s University Press, 2007), 127–43. 71 Thomas J. Courchene, ‘This Just In: Surpluses across the Board,’ Policy Options 29/4 (2008): 37–9. 72 Richard Bird, ‘Subnational Tax Competition,’ Topic Brief, World Bank, Washington, DC, 7 Sept. 2000, available at www.worldbank.org/publicsector/tax/taxcompetition.htm. 73 This calculation excludes military spending, which has grown at a similar rate (7.2% per year). William B. P. Robson, ‘Out of Control: Reining in Soaring Federal Spending Is a Critical Task for the Next Parliament,’ E-Brief, Toronto, C.D. Howe Institute, 12 Jan. 2006, 5, available at www.cdhowe. org. 74 Author’s calculations. Source: Gouvernement du Québec, 2006–2007 Expenditure Budget, vol. 4, Quebec City, Conseil du trésor, 2006, 101–3, available at www.tresor.gouv.qc.ca. 75 St-Hilaire, ‘Écarts et déséquilibres fiscaux,’ 34. 76 Noël, ‘Social Justice in Overlapping Sharing Communities.’ 77 Canadian Council of Chief Executives, From Bronze to Gold: A Blueprint for Canadian Leadership in a Transforming World, Ottawa, 21 Feb. 2006, 18-23, available at www.ceocouncil.ca; Godbout and Dumont, ‘Mettre cartes sur table,’ 47–52; Michael Smart, ‘Federal Transfers: Principles, Practice, and Prospects,’ Toronto, C.D. Howe Institute Working Paper, Sept. 2005, available at www.cdhowe.org.

302 Alain Noël 78 The authors proposed a reduction of the GST from 7% to 5% as was promised by the Conservative Party. See Finn Poschmann and Stephen Tapp, ‘Squeezing Gaps Shut: Responsible Reforms to Federal–Provincial Fiscal Relations,’ Toronto, C.D. Howe Institute Commentary, no. 225, Dec. 2005, available at www.cdhowe.org. 79 SCF, Report; Robin Boadway, ‘The Vertical Fiscal Gap: Conceptions and Misconceptions,’ in Lazar (ed.), Canadian Fiscal Arrangements: What Works, What Might Work Better, 71–5 ; Thomas J. Courchene, ‘Pan-Canadian Provincialism — The New Federalism and the Old Constitution,’ Policy Options 25/10 (2004): 20–8.

11 From the Canadian Social Union to the Federal Social Union of Canada, 1990–2006 sarah fortin

Writing about the ‘Canadian social union’ is both risky business and a challenge. Risky, because the very notion of a Canadian social union does not yet commend the support of all provinces. In Quebec specifically it usually provokes one of two reactions: at worst, outright condemnation of what many Quebecers see as a distortion of the constitutional distribution of powers agreed to in 1867,1 at best, a skinsensitive type of reaction to the federal government’s use of its spending power. This power has been seen as a way for Ottawa to shape priorities in areas that should fall exclusively within provincial jurisdiction. In the final analysis, the idea of a Canadian social union is usually met with suspicion and recrimination in Quebec – much less often, with enthusiasm. Writing about the ‘Canadian social union’ is also a challenging task because the study of the social union involves the examination of a large number of interrelated issues, ranging from the social programs themselves to budgetary and taxation issues and federal–provincial relations. As Yves Vaillancourt points out, ‘in Canada, reforms within the two fields of federal-provincial relations and social policy have been inextricably linked since the 1930s. Any examination of reforms within the former inevitably leads to central issues within the latter, and vice versa.’2 To this we must add a symbolic dimension, according to which the social union is a major locus for the expression of a Canadian identity. Thus, for example, the importance, especially outside Quebec, attached to the Canada Health Act. This view has gained prominence in recent years, and the social union is increasingly seen as the link capable of protecting Canadian unity against the forces of globalization and the

304 Sarah Fortin

knowledge economy. In this new economic environment, many Canadians believe Ottawa has a paramount role to play, including in social policy. This is what Tom Courchene alluded to when he wrote that the main argument for an increased role of the federal government in the social domain is ‘that the essence of nation-building and electoral salience have also shifted away from resource-based mega-projects and toward citizen-driven infrastructure and policies in areas like health, education and income distribution.’3 And, finally, a study of the social union leads to an examination of issues that are related to the role of government and the management of public programs, especially since the signing of the Social Union Framework Agreement (SUFA) in 1999. Since then, it is no longer possible to discuss the social union without touching on issues such as horizontal management (intergovernmental and interdepartmental coordination), transparency, citizen involvement, and accountability. This chapter seeks to rise to these challenges by tracing the broad outline of the origin of the Canadian social union and tracing the main factors that led to the adoption of SUFA – reflections on what unites citizens within a federation; the federal budgetary impasse of the 1990s; the concerns brought about by globalization; and a particular notion of governance – and by assessing its current status in light of the developments that have taken place in recent years. The Canadian Social Union: What Social Union? It is important at the outset to make a clear distinction between the concept of the social union and its offspring, the Social Union Framework Agreement. They are two separate entities. As noted by Michael Prince, the social union is a multidimensional concept.4 First, it is a series of processes and structures that was launched in 1995 at the annual First Ministers Conference. Prince is alluding here to the dynamics of intergovernmental relations and to the different federal–provincial and interprovincial fora in which government delegates meet to negotiate solutions to disputes related to social policy. Historically, the annual federal–provincial–territorial premiers’ meetings have been the main forum for these negotiations, dealing primarily with financial matters, although lower-level meetings (of ministers responsible for specific portfolios such as health care or education, e.g.) have also played an important consultative and coordinating role. During the second half of the 1990s, the Ministerial Council on Social

From Canadian Social Union to Federal Social Union, 1990–2006  305

Policy Renewal played a decisive part in shaping the Canadian social union. More recently, the creation of the Council of the Federation, in December 2003, is a good example of an institution born as a result of negotiations on the Canadian social union. Second, the social union refers to decisions and arrangements made by governments, including action plans, budget decisions, fiscal arrangements, and social programs. It is at that level that SUFA is found, side by side with other intergovernmental agreements, including the Multilateral Framework on Early Learning and Child Care (2003) and the recent agreements on health care (September 2004) and equalization (2005). Finally, the notion of social union refers to a series of perspectives on federalism and social policy. At this broader level, it presupposes a ‘belief system’ regarding the respective roles of and relations between the state, the economy, the family, and the community. ‘In this sense, the social union refers to the long-term ideas and infrastructure of Canadian social policy,’ writes Prince.5 It is in the context of this last perspective that I will first trace the broad outlines of the development and adoption of the notion of social union in Canada. It is probably at that level that the situation has changed the most substantively in recent years. It is also at that level that the sensitivities of all the actors involved in the social area (not only governments but also civil society) are the greatest. Because the notion of the Canadian social union has a bearing on ideas about the role of the state and about federalism its emergence has provoked resistance in some quarters and received support in others. As we shall see later on, three other elements have contributed to the development of the social union: the federal budgetary impasse, the concerns brought about by globalization, and a particular notion of governance. The Making of the Social Union Pace Michael Prince, the first stirrings of the social union date back well before the interprovincial consultation process undertaken in the wake of the 1995 federal budget. It will be recalled that the reductions in transfers to the provinces announced in that budget prompted the provinces to create the Provincial–Territorial Council on Social Policy Renewal, leading to negotiations that resulted in the signing of SUFA in 1999 by all Canadian governments except that of Quebec. This agree-

306 Sarah Fortin

ment is often the first thing that comes to mind in discussions about the social union. In fact, however, the idea of a Canadian social union was born earlier. Some observers believe it goes back to the work of the Royal Commission on the Economic Union and Development Prospects for Canada (1983–85). The MacDonald Commission is usually remembered for its recommendations favouring the adoption of free trade with the United States, but a whole section of its report was also devoted to the future of social programs.6 However, the commission’s approach was a traditional one, in that social issues were examined from a welfare state perspective. The notion of a social ‘union’ was not formally discussed. The idea emerged more explicitly in the context of the constitutional discussions of the late 1980s (Meech Lake Accord) and the early 1990s (Charlottetown Accord). The debate that led to the 1992 Charlottetown Accord was a particularly important catalyst in that regard. It was during those discussions that Bob Rae, then the New Democratic premier of Ontario, suggested that a social charter be adopted. The consensus itself included a section devoted to the ‘social and economic union,’ which proposed that ‘a new provision should be added to the Constitution describing the commitment of the governments, Parliament and the legislatures within the federation to the principle of the preservation and development of Canada’s social and economic union.’7 As history goes, the Charlottetown Accord was submitted to a referendum on 26 October 1992, and was rejected by 54 per cent of voters. Despite this, the idea that Canada was not just a political and military union and not just an economic union – the major driving forces behind its development since 1867 – but also a social union, was beginning to take root. The adoption in July 1994 of the Agreement on Internal Trade, which was aimed at strengthening the economic union by lowering obstacles to the mobility of people, goods, services, and capital, also helped to highlight the need to develop and strengthen the social union.8 The publication in June 1996 of Margaret Biggs’s Building Blocks for Canada’s New Social Union marked a turning point. In that study, Biggs assesses the changes that had taken place in the area of social programs in previous years and proposes some principles and mechanisms that should serve as the basis for a ‘new’ Canadian social union. Above all, she presents a clear definition of the social union that emphasizes the citizenship dimension: ‘The web of citizens’ rights and obligations that

From Canadian Social Union to Federal Social Union, 1990–2006  307

give effect to our shared sense of purpose and common citizenship. The social union embodies our sense of collective responsibilities (among citizens), our federalism pact (between and across regions) and our governance contract (between citizens and governments).’9 During those years, several other Canadian researchers and academics contributed to the development and deepening of this ‘new’ approach to Canada, including Harvey Lazar, Keith Banting, and Jane Jenson. The scope and richness of the concept of the social union became particularly evident when it was used as a guide to understanding the development of social programs in the postwar period. Biggs, for example, described the Marsh Report and the 1994 Speech from the Throne, in which the federal government invited the population to adopt a ‘social security charter for all of Canada,’ as elements of a ‘success story’ of the Canadian social union. This reading of the reasons that led to the establishment of the Canadian welfare state is not necessarily wrong, but it is important to note that two major elements are missing. The first is Quebec’s view of the federation, according to which the federal pact is not just an agreement between regions and provinces but a covenant between two nations. The second is that of social classes. The class perspective is not a driving theme of the debate about the social union during the 1990s. The citizen has taken over the worker. In addition to the constitutional discussions that took place in the late 1980s and early 1990s, which stimulated reflection and action on social issues and on what unites citizens within a federation, in reaction to discussions that were perceived as being too heavily focused on political and autonomy issues, in particular during the ‘Quebec Round’ of the years 1985–90, two other major forces contributed to the adoption of the discourse on the Canadian social union. First were the very real financial difficulties faced by the federal government during the 1980s, and second, concerns regarding globalization and the restructuring of the welfare state in developed countries. When Everything Goes Wrong At the turn of the 1990s the federal government’s financial situation had become alarming. Since the mid-1970s, various tax policy measures (such as the decision to index income tax tables), coupled with difficult economic conditions, had resulted in Ottawa’s expenditures exceeding its revenues. The situation was made worse by the monetary policy of

308 Sarah Fortin Figure 11.1. Surplus (+) / Deficit (-) of the Consolidated Governments, Canada, 1990 to 2006 ($ billion).

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

30 20 10 0 -10 -20 -30 -40 -50 -60 -70

1990

1992 Local

1994

1996

1998

Provincial and territorial

2000

2002

CPP/QPP

2004

2006

Federal

Notes: CPP/QPP: Consolidated Canada Pension Plan and Quebec Pension Plan. Data for the consolidated federal, provincial, territorial, and local governments include data for the federal government for the fiscal years ending 31 March, for the provincial and territorial governments for the fiscal years ending closest to 31 March, and for the local governments for the fiscal years ending closest to 31 December of the previous year. Source: Statistics Canada, Public Sector Statistics, Supplement 2006 (Ottawa: Minister of Industry, 2006), 10.

the 1980s. The escalation of interest rates was such that spending, in particular debt service payments, increased dramatically while revenues declined. Figures 11.1 and 11.2 show the deterioration in Ottawa’s fiscal position from the 1970s onward, at a more pronounced rate than that of the provinces, and its restoration in the late 1990s. For example, the federal deficit grew from 1 per cent of gross domestic product (GDP) in the early 1970s to nearly 8 per cent in 1985, with federal debt more than doubling during that period.10 Around the time when Brian Mulroney’s Conservatives assumed power in 1984, Ottawa took a number of steps to try to deal with the situation. The tax tables were partly de-indexed, so that economic growth would automatically be reflected in higher incomes, as were

From Canadian Social Union to Federal Social Union, 1990–2006  309 Figure 11.2. Canadian Federal and Provincial Government Budget Balances (% of nominal GDP). 4 2

Surpluses

0 -2 -4 -6 -8 -10 -12

68–69 71–72 74–75 77–78 80-81 83–84 86–87 89–90 92–93 96–96 98–99 combined federal and provincial budget balances federal budget balances

Source: Don Drummond, ‘Deficit Elimination, Economic Performance and Social Progress in Canada in the 1990s,’ in Keith Banting, Andrew Sharp, and France St-Hilaire, eds., The Review of Economic Performance and Social Progress (Montreal: IRPP, 2001), 132.

some benefits, in particular family allowances and pensions, thus leading to a decline in expenditures. Above all, Ottawa reduced transfers to the provinces. To understand the significance of these reductions, it is important to recall that the funding of the social programs established in the postwar period, especially during the 1960s, was largely dependent on transfers from Ottawa. Until the late 1970s, the main mechanism was a costsharing arrangement by which the two levels of government shared the cost on a 50–50 basis. In 1977 a new block funding mechanism was introduced with the adoption of established programs financing (EPF), which brought to an end the existing cost-sharing programs in health

Figure 11.3. Chronology of the Evolution of Major Cash Transfers: Education, Health, Social Assistance and, Equalization, 1947–2004 1950s

Equalization Social Assistance

Health

Education

Area

1960s

1968 Medicare (50/50)

1970s

1980s

1952 Old Age Security for 70+ Old Age Assistance (65-69) (50/50) Assistance for Blind Persons (75/25) 1954 Assistance for Disabled Persons (50/50) 1956 Unemployment Assistance (100/0) 1957

1984 Canada Health Act

1965 Canada Assistance Plan (50/50) CAP

1990 cap on CAP

2000s 2003 First Ministers’ Accord on Health Renewal Canada

1977 Established Programs Financing (EPF)

1968 Hospital Insurance (50/50) 1926 Old Age Pension (50/50)

1990s

2004 10-Year Plan to Strengthen Health Care 2004 Canada Health 1996 Transfer Canada Health and Social Transfer 2004 (CHST) Canada Social Transfer 2005 Early learning and Child Care Agreements

1982 enshrined in the Constitution

Note: Cost sharing is listed as (% federal/% provincial). Source: Adapted from Stephen Laurent and François Vaillancourt, ‘Federal-Provincial Transfers for Social Programs in Canada: Their Status in May 2004,’ IRPP Working Paper 2004–07 (Montreal: Institute for Research on Public Policy, 2004), 3

From Canadian Social Union to Federal Social Union, 1990–2006  311

care and education. However, the shared-cost approach remained in place for other social and income security programs under the Canada Assistance Plan (CAP) until 1996, when the Canada Health and Social Transfer was implemented. Figure 11.3 outlines the major changes that have taken place in federal transfers to the provinces since the 1950s.11 Thus, in 1985, in an attempt to control its deficit, Ottawa partially de-indexed EPF transfers, and in 1990, put ‘a cap on CAP.’ Similarly, the ceiling imposed by the Liberals on equalization payments in 1982 was maintained. The reforms brought to the unemployment insurance program in the early 1990s, especially with respect to eligibility criteria and income replacement rates, also had a major impact on the federal government’s financial position.12 As Yves Vaillancourt put it: ‘by restructuring its unemployment insurance program, which became “employment insurance” in the mid-1990s, the federal government has transformed it into a cash cow, enlisted in the battle against the deficit. Thus this program, which had an accumulated deficit of $6 billion in the early 1990s, has generated an accumulated surplus over the years, totalling $36 billion as of 31 March 2001.’13 This reform was also criticized because of its indirect impact on provincial budgets, as many unemployed workers who were ineligible for the new employment insurance program were forced to apply for social assistance (welfare).14 These reforms were already difficult for the provinces and for Canadians in general to absorb, but the federal government was poised to strike even harder. Although there had been some improvement, Ottawa’s fiscal situation remained a matter of concern. In 1995 the government completed the process begun in 1977 for health care and education by combining all transfers to the provinces into a single ‘block fund’ (except equalization transfers). The two major transfer programs in effect at the time – CAP, which covered social services and income security, and EPF, covering post-secondary education and health care – were merged into a single program on 1 April 1996, the Canada Health and Social Transfer (CHST). The era of shared-cost programs, which had begun during the 1960s, had definitely come to an end. The conditions attached to federal transfers that had prevailed until then were also eliminated, with the exception of residency conditions for social assistance and the five criteria set out in the Canada Health Act (universality, comprehensiveness, accessibility, portability, and public administration), which remain in effect to this day. Transfers were no longer based on needs or costs but on

312 Sarah Fortin

the number of residents in the province, with the amount in an overall envelope being set at Ottawa’s discretion. Another step was taken in September 2004, when changes were made to the equalization program.15 While the federal government’s fiscal position was an object of concern in the 1980s and early 1990s, that of the provinces was scarcely more promising. The 1995 federal budget foreshadowed even more difficult times ahead. In effect, the establishment of the CHST in 1995 resulted in the provinces facing a reduction in federal transfers amounting to $7 billion (34%). By August 2001 the federal government’s contribution to social programs was estimated to be only 14 per cent.16 Tom McIntosh has pointed out that the impact of the new transfer on the provinces was the result of not only the reduction in payments but also the lack of an integrated formula for increasing transfers in subsequent years, which meant that the federal government could, at its sole discretion and on the basis of its own priorities, determine the amount to be transferred to the provinces.17 This signalled a complete turnaround in relations between the two levels of government compared with the situation that prevailed in the context of shared-cost programs, when provincial decisions had an impact on the federal fiscal position. For example, because last-resort programs (social assistance) received half of their funding from Ottawa, any increase in the parameters of a provincial program led to an increase in federal expenditures. In other words, for certain social programs the provinces’ budget decisions cost them only 50 cents for each additional dollar. In fact, the ceiling imposed on CAP in 1990 was the result in part of increased spending in Ontario and of that province’s plans to reform its social assistance program.18 Concretely, the provinces reacted in two ways to the 1995 budget cuts: first, by launching the interprovincial process aimed at giving them a voice with regard to the federal government’s spending power, which eventually led to the signing of SUFA in 1999, a subject to which we shall return; and second, by making cuts in their own spending on social programs, especially last-resort programs.19 From the perspective of the Canadian social union, these developments in the social, fiscal, and tax policies of Ottawa and the provinces fuelled concerns among many Canadians about the future of the country and its social programs. Combined with the constitutional debate, the federal government’s budgetary decisions added an incentive to developing a coherent approach to the social union.

From Canadian Social Union to Federal Social Union, 1990–2006  313

Meanwhile, in the International Arena ... The debate on the social union was also affected by developments in the economic arena and on the international stage. These changes included the transformations of the welfare state across the developed countries, the acceleration in trade liberalization as part of what has become known as globalization, and as a corollary, the growing influence of the neo-liberal ideology, which gives priority to the market and emphasizes individual preferences. What concerns observers in this context is more the ideological clash between the Left and the Right regarding the role of the state versus the market, than budget decisions and the fate of various social programs, which are seen as mere expressions of this larger struggle. Among the more notable developments in that regard was the election in 1979 of Margaret Thatcher in the United Kingdom and in 1981 of Ronald Reagan in the United States. In Canada, in addition to the above-mentioned federal budget decisions and their impact on provincial finances, there was the signing of the Canada–U.S. Free Trade Agreement in 1988 and the North American Free Trade Agreement (NAFTA) in 1994, the creation of the Reform Party in 1990 and the 1997 election of Mike Harris in Ontario fuelled concerns.20 Two main perspectives can be distinguished in classifying those who have been examining this development. The first is comparative and examines the welfare state in developed countries; it works more readily with the concepts of ‘social contract,’ ‘social inclusion,’ and ‘citizenship regime’ than that of social union. The second is more critical, focuses on political economy and borrows from feminist, environmental, and Marxist theories. This second school is more analytical, whereas the first tends to be descriptive and to provide information on changes that can be observed.21 Analyses conducted from the political economy perspective draw attention to power relations and seek to uncover the often insidious ways in which these relations are reproduced. In terms of the reconfiguration of social policy that has been taking place over the past fifteen years or so, this approach has adopted a fairly orthodox stance on the role of the state. It usually is very critical of attempts to renew the Left (the ‘third way’), which it sees as a shift to the right.22 As Yves Vaillancourt points out, ‘within the binary analytical framework (state/ market) to which the traditional Left is still attached, the defence of the postwar social policy heritage is part and parcel of today’s progressive

314 Sarah Fortin

agenda. Whereas in the 1970s criticism of these very social policies was an integral part of the rhetoric of the New Left, now it is inevitably perceived as a neoliberal position.’23 As far as the development of the Canadian social union is concerned, these two schools of thought and research warn against the temptation to believe that the evolution of the welfare state in Canada is simply a reflection of Ottawa’s financial difficulties.24 Interestingly enough, while very critical of Ottawa’s tax and fiscal measures in the 1990s, there is a strong tendency, in normative terms, to insist on the importance of a strong central government. This preference explains in part why SUFA was greeted with suspicion, as it was perceived as a dangerous form of decentralization. It also explains why the federal government’s ‘reinvestment’ in social policy, once budgetary balance had been restored, was welcomed. This took place, with or without the concurrence of the provinces, in health care (health care information, research and development), education (Canada Foundation for Innovation, Canada Research Chairs, Canada Millennium Scholarship Foundation, Canadian Council on Learning), family policy (National Child Benefit, improved employment insurance provisions for maternity and parental benefits), community organizations (Initiative between the Government of Canada and the Voluntary Sector), help for the homeless (National Homeless Initiative), and child care (Multilateral Framework on Early Learning and Child Care). Governance Issues In addition to the constitutional debates, budgetary pressures and the transformation of the welfare state, governance is the fourth and final thread that completes the social union tapestry, in particular after the signing of the Social Union Framework Agreement in 1999. From that perspective, SUFA was just one of many manifestations of a new resultsdriven management approach that drew its inspiration from the new public management. There are two facets to this: first, SUFA was not the only agreement of its kind, and second, it embodied a new approach to the management of public programs. Because SUFA concerned programs that most directly affected the population, and probably, because it concerned sectors that required the largest public expenditures, the signing of the agreement led to strong reactions, especially among those involved in social policy. Because it concluded a difficult period in intergovernmental relations

From Canadian Social Union to Federal Social Union, 1990–2006  315

and perhaps also because it was hoped that SUFA foreshadowed better times,25 or conversely, because the agreement seemed to reinforce the views about the federal system (in Quebec), few noticed that, in fact, SUFA was not the only agreement of its kind. There were similar mega-agreements in trade (the Agreement on Internal Trade, signed in 1994, with Quebec taking part) and the environment (the Canada‑Wide Accord on Environmental Harmonization, signed in January 1998, without Quebec).26 In addition, there were several sectoral agreements, such as the Vancouver Agreement (between the federal government, British Columbia, and the City of Vancouver, signed in March 2000), the Initiative between the Government of Canada and the Voluntary Sector (December 2001), and the Multilateral Framework on Employability Assistance for People with Disabilities (December 2003, without Quebec). One particularly interesting feature of these agreements is that they contained the same broad commitments to general principles – cooperation, coordination, citizen involvement, and transparency (accountability and reporting) – as SUFA contained. As a rule, the statement of objectives featured in the agreements reflected the importance given to results (as opposed to procedures) and to horizontal consultation (between governments, between ministries and departments, and between government and citizens). As Ian Peach notes, ‘whatever the name that is used in a particular jurisdiction, each is seeking to achieve the same fundamental public administration goal through similar procedural innovations: to make government more responsive to citizen needs and expectations by addressing multi-faceted social challenges with multi-faceted, coordinated responses.’27 Seen from that perspective, SUFA looks very different. This is not to deny the importance of the symbolic dimension and of political and budgetary factors in the development of the discourse on the social union and the signing of the agreement, but merely to point out another significant facet. The number of intergovernmental (and intragovernmental) agreements is simply too great to be just a chance occurrence. The Social Union Framework Agreement The Social Union Framework Agreement, which was signed in February 1999 by all governments in Canada except that of Quebec, is the most explicit expression of the thinking on the Canadian social union prevailing in the early 1990s.

316 Sarah Fortin

However, although it reflected the discussions on the need to develop a Canadian social union (e.g., Section 1, which deals with principles, states that ‘Canada’s social union should reflect and give expression to the fundamental values of Canadians – equality, respect for diversity, fairness, individual dignity and responsibility, and mutual aid and our responsibilities for one another’), the agreement was to an even greater degree the outcome of a process of intergovernmental cooperation, first interprovincial after the 1995 Speech from the Throne, then federal–provincial starting in November 1996. It is above all an intergovernmental administrative document that is not legally binding28 and that is mainly concerned with the governance of the social union. The agreement included key concepts such as partnership, accountability, transparency, and the involvement of Canadians. At their 1995 annual conference, the premiers established the Ministerial Council on Social Policy Reform and Renewal, with Quebec’s premier abstaining. This measure came in the wake of the announced cuts in transfers to the provinces and was aimed at putting an end to Ottawa’s unilateral decisions. While the federal government’s spending power had caused much concern over the years, it was now the unilateral exercise of its power ‘not to spend’ that was a source of preoccupation. In December 1995 the council produced a working paper that reflected provincial concerns in the area of social policy.29 At their August 1996 annual meeting, in Jasper, the premiers broadened their effort by establishing the Provincial–Territorial Council on Social Policy Renewal, which was charged with, among other things, examining the role the provinces might play in defining national standards. The close defeat of the October 1995 referendum in Quebec also had an impact on the federal government, which undertook to show that it was possible to reform the federation by non-constitutional means.30 It was at this time that the House of Commons recognized Quebec’s status as a distinct society (and the provincial premiers adopted the Calgary Declaration). Thus, paradoxically, while it was making unilateral reductions in transfers to the provinces, it also expressed commitment to cooperate with them. In its 1995 budget Ottawa had already encouraged the provinces to ‘work together on developing, through mutual consent, a set of shared principles and objectives that could underlie the new Canada Social Transfer.’ In the 1996 Speech from the Throne, the government tackled the concept of the social union in more explicit terms. It reiterated its intention ‘to work with the provinces and Canadians to develop by

From Canadian Social Union to Federal Social Union, 1990–2006  317

mutual consent the values, principles and objectives that should underlie, first, the Canada Health and Social Transfer and, building on this, the social union more generally.’31 Ottawa also made a commitment to refrain from using its spending power to create shared-cost programs in areas of exclusive provincial jurisdiction without the approval of a majority of the provinces. In addition, it promised to ensure that all new programs would be designed in such a way that any province that did not participate would be compensated, provided it put in place an equivalent or comparable program. Finally, the federal government joined the provinces as part of the Federal–Provincial–Territorial Council on Social Policy Renewal, which met for the first time in November 1996, ‘to work together in a new partnership to renew Canada’s social safety net,’ giving priority to putting in place an integrated child benefit and improving programs aimed at persons with disabilities.32 Negotiations leading to the adoption of a framework agreement on the social union were formally launched during the winter of 1998. The Quebec government took part as an observer until the summer of 1998, when the provinces reached an agreement at their Saskatoon meeting, including the right to withdraw with full compensation.33 However, the accord that was eventually signed in February 1999 was significantly different from the Saskatoon agreement and from the position supported by Quebec, which led Quebec to refuse to endorse the accord.34 The Social Union Framework Agreement was greeted with dismay in Quebec, where it was considered, among other things, to be more evidence that interprovincial common fronts were exercises in futility and were not an adequate venue for promoting Quebec’s interests or defending its position on social programs.35 It should be noted, however, that, while SUFA was short from Quebec’s point of view, it was also a move away from the approach proposed by the governments of Alberta and Ontario at the premiers’ summer 1996 meeting. That approach was set out in a document prepared for the Ontario government by Tom Courchene entitled ACCESS: A Convention on the Canadian Economic and Social System.36 Contrary to the Report to Premiers prepared by the Ministerial Council on Social Policy Reform and Renewal and to several subsequent documents – which stressed the importance of provinces’ role in defining ‘national standards’ and sought to put an end to Ottawa’s unilateral decisions with regard to social programs, but still gave Ottawa an important role to play in these matters37 – the 1996 proposal rejected

318 Sarah Fortin

Ottawa’s role and gave the provinces exclusive leadership in social programs. Courchene’s document proposed that ‘full responsibility for the design and delivery of health care, welfare, and education would devolve to the provinces. This is the ‘closer to the people’ component of subsidiarity (no. 6). The externalities or pan-Canadian components of subsidiarity would be addressed via an interprovincial accord that would embody principles and standards as well as measures to guarantee mobility and portability. On the fiscal side, the proposal incorporates both the equalization and the fiscal neutrality principles (no. 4). More significantly, the interprovincial accord presumes a complete federal withdrawal from the area since cash transfers would be transferred into additional equalized tax-point transfers.’38 This approach to responsibilities regarding social programs was not considered by the provinces during their discussions in 1996–98.39 Although it represented a step backward relative to the consensus reached at Saskatoon during the summer of 1998, the February 1999 Framework Agreement was nonetheless closer to what the provinces (apart from Quebec) sought to achieve in the plan submitted in the Report to Premiers than is generally acknowledged. For example, the premiers recognized in that document that ‘Canada’s social safety system consists of a complex series of interconnected programs and services, with the federal and provincial/territorial governments active in virtually every field.’40 Thus, the provinces did not deny Ottawa a role but tried to define it better (in particular with regard to fiduciary responsibilities towards Aboriginals) and to prevent any unilateral decision-making, while affirming their leadership. The extent of the gains or losses experienced by the provinces between 1996 and 1999 is a matter for debate. Among other things, they are still awaiting a dispute-settlement mechanism. In addition, one may question whether SUFA truly met their demand for a framework designed to guide the renewal process in areas of provincial–territorial jurisdiction. One should also note that the federal spending powers have remained an exclusive federal prerogative: despite statements emphasizing cooperation, the federal government has often taken unilateral initiatives in areas of provincial jurisdiction such as education (the Millennium Scholarships), health care (transition funding), and social services (help for the homeless). But it is also worth noting that many of the priorities chosen by the premiers – the integrated child benefit, programs for the disabled, and the restoration of transfers to the provinces, especially for health care –

From Canadian Social Union to Federal Social Union, 1990–2006  319

have remained core issues in federal–provincial negotiations and have seen significant developments in recent years. True, these results are modest in comparison with expectations. As Alain Noël has pointed out, ‘the manner in which this reversal has been conducted, however, is revealing. Indeed, an important part of the increase in social transfers has occurred through the allocation by the federal government of ad hoc funds that are conditional and earmarked for health care, early childhood development or post-secondary education.’41 Many of the more recent federal-provincial agreements, such as those on health care funding in 2003 and 2004 and the bilateral federal–provincial agreements on apprenticeship and child care, signed in the summer of 2005, have the same targeted, ad hoc, and conditional features. In addition, they are surprisingly silent about SUFA, even though they contain similar commitments with regard to accountability, transparency, and cooperation.42 While some authors have a more positive view of SUFA,43 in the final analysis, and despite the strong feelings that greeted it and the expectations that it generated, most observers agree that SUFA has had only a marginal impact on the evolution of social programs and intergovernmental relations. Indeed, many are disappointed by the lack of concrete results.44 As in other sectors where agreements were concluded, the impact on the content of policies has been mixed.45 In summary, the main conclusion reached by researchers who have studied this period is that the Social Union Framework Agreement of 1999 is an illusion. SUFA is characterized as an ‘empty shell,’ a ‘missed opportunity,’ a ‘stillborn’ or ‘incorrectly implemented agreement,’ a ‘sub-optimal form of cooperation.’46 As a result, more than four years after the publication of the report reviewing SUFA, which recommended continued consultations, cooperation, and a new assessment within five years,47 one is tempted to conclude with Roger Gibbins that SUFA is merely the product of the political context, the major parameters of which are now a thing of the past.48 The Canadian Social Union in 2006 Clearly, the political situation has indeed changed dramatically since 1999. Not only has the federal government been able to put its finances in order, but since 1998 it has, year after year, recorded huge budget surpluses, totalling $63 billion in eight years.49 Under those circumstances,

320 Sarah Fortin

the concern is no longer Ottawa’s power not to spend, as it was in 1999, but how and where it will spend. In their determination to influence those decisions, the provinces have mobilized to recover and enhance the transfers from Ottawa. Until now, with the exception of the transfer to municipalities of part of the federal gas tax, these reinvestments have occurred mainly in provincial priority areas – namely, child services and health care. In 2005 the provincial premiers announced their intention to continue their campaign on post-secondary education and the financing of universities.50 The growth in federal budget surpluses at a time when the provinces faced difficulties in balancing their own budgets has given rise to a new issue, that of vertical fiscal imbalances, largely led by Quebec and by the Council of the Federation (which was established in December 2003).51 Until January 2006 the federal government refused to acknowledge the existence of vertical fiscal imbalances. The election of Stephen Harper and his minority Conservative government was expected to alter significantly the evolution of this file. Not only has Harper promised that a Conservative government would ensure that fiscal imbalances would be eliminated and provincial areas of jurisdiction would be respected, but he also announced that his government would practice a ‘new open federalism’ that would, among other things, recognize Quebec’s specific cultural and institutional responsibilities.52 This favourable attitude towards Quebec is part of a trend already observed during Paul Martin’s prime ministership, as evidenced by the Canada–Quebec Final Agreement on the Quebec Parental Insurance Plan, signed in March 2005, the separate agreement on health care, signed in September 2005, and the agreement on child care, signed in October 2005. Finally, the question of equalization has also resurfaced. After escaping the turbulence experienced by other transfer programs over the past twenty years, equalization slid back into controversial waters at the turn of the millennium. In October 2004 the premier of Newfoundland and Labrador, Danny Williams, made a precipitous exit from the premiers’ conference following a disagreement over the treatment of provincial revenues from offshore resources in the equalization formula.53 Like Nova Scotia, Newfoundland wanted to keep 100 per cent of offshore revenues and to shelter them from the claw-back provisions of the equalization formula. The question of natural resources is one of the major issues faced by the equalization program since its inception. In 1982, for example,

From Canadian Social Union to Federal Social Union, 1990–2006  321

a ‘five-province standard’ was established to assess the fiscal capacity of each province, thus excluding the oil-rich province of Alberta. This time around, parallel agreements have been signed with the provinces concerned. In January 2005 Ottawa signed separate agreements with Newfoundland and Labrador and Nova Scotia to exclude their offshore revenues from the calculation of their respective fiscal capacities.54 These à la carte agreements caused some turmoil in other provinces in the following months, with Saskatchewan complaining that its resource revenues were subject to a claw-back in excess of 100 per cent55 and Ontario denouncing Ottawa because it invested less in that province than it took from it, the gap being $23 billion, according to Ontario.56 These budgetary and financial questions are a reminder that the social union is neither just an intellectual notion nor a device created during a difficult period in an attempt to stop the decline of the welfare state or to reinforce a sentiment of national cohesiveness. Rather, it involves some very concrete issues, namely, the fiscal capacity available to several provinces to offer the same level and quality of social programs to their residents. That is certainly the case with the poorest provinces. For example, in 2004–05 the share of federal transfers in provincial revenues ranged from 16 per cent in Alberta to 42 per cent in Nova Scotia.57 Given the improved financial position of some Atlantic Provinces, Alberta’s exceptional performance, and Ottawa’s budget surpluses, there are reasons to believe that these issues will impact federal–provincial relations for some time. As of this writing, the reports of advisory committees on equalization set up by the federal government and of the Council of the Federation on fiscal imbalances were expected. While SUFA’s fate is explained in large part by changes in the political and fiscal environments across Canada, the fact that Quebec, the second-largest province in terms of population, refused to endorse the agreement, also played a significant role in its fall into obsolescence. The April 2003 election of a federalist Liberal government in Quebec did not change anything in that regard.58 The agreements concluded in the social policy area since then were reached despite the Social Union Framework Agreement, not as a result of it. In fact, the election of Jean Charest marked a point of no return in that respect. For example, the mandate of the Council of the Federation, in whose creation he played a central role, is silent on SUFA even though it includes topics and commitments similar to those of SUFA. The council was to open the way to ‘a new era of cooperation between

322 Sarah Fortin

the provinces and territories’59 by fostering dialogue and consultation aimed at developing coordinated approaches, in particular in health care, education, and fiscal relations. The council, acting strictly at the interprovincial level, marks a vigorous return to federal principles such as respect for the Constitution, the division of responsibilities, and respect for diversity, and bears the imprint of Quebec, for example, in the preamble, which points out that Quebec did not agree to the Constitution Act, 1982. It is still too early to measure the results of the new council, but it is worth noting that by giving it a permanent secretariat, the premiers provided it with the institutional foundation and the administrative support that were lacking in SUFA, and in so doing they have probably given it the means to avoid falling into political limbo. That being said, the common-front rationale on which the council is based is nothing new, and it will soon be apparent whether it will pass the test of Canadian political realities better than it has in the past.60 The negotiations on fiscal imbalances and the equalization program will have a determining impact in that regard.61 The development of the Canadian social union during the 1990s is a nearly exemplary illustration of how closely the evolution of social programs is linked to the financial and fiscal health of governments, to the vagaries of federal–provincial relations, and to concerns about Canadian unity. Whatever SUFA’s other benefits may be, it will at least have focused our attention on these interactions. Even though the political environment is very different, the next few years will likely stand the same pressures. While the establishment of the Council of the Federation, with its more formally federal approach to social issues, and the election of Stephen Harper’s Conservatives, with their ‘open federalism,’ seem to signal a significant break in terms of the approach to matters of common interest to all the provinces, the fact remains that the forces that contributed to the high visibility of the concept of the social union in the rest of Canada (progressive forces and Canadian nationalism) and to the adoption of SUFA (governance and the interdependence of the responsibilities of the two orders of government) are forces that will have to be reckoned with. They can be expected to be obstacles on the road to asymmetry and unlimited decentralization. In that context, both the Council of the Federation and the new government have yet to demonstrate that they are up to the coming challenges, especially with regard to the role of the private sector in health care and the reform of the equalization program. As for the provinces,

From Canadian Social Union to Federal Social Union, 1990–2006  323

they must show that the opportunities provided by the block-funding approach can be utilized to enhance social programs and services and that interprovincial dialogue and cooperation do not necessarily translate into a competition for the lowest common denominator. Should our governments succeed in doing this, then we may see the emergence of a ‘federal social union of Canada’ that respects both the autonomy and diversity sought by some and the sense of common purpose and belonging desired by others. Notes   1 Sections 92 and 93 of the Constitution Act, 1867, grant the provinces res­ pon­sibility for social programs. Note, however, that the Constitution was amended in 1940 to give the federal government responsibility for unemployment insurance. The federal government also has authority over social matters via its responsibilities for old age security (which is a responsibility shared with the provinces), public health (e.g., the authorization and the regulation of drugs), and with respect to veterans and Aboriginal peoples.   2 Yves Vaillancourt, ‘The Quebec Model in Social Policy and Its Interface with Canada’s Social Union,’ in Sarah Fortin, Alain Noël, and France StHilaire, eds. Forging the Canadian Social Union: SUFA and Beyond (Montreal: Institute for Research on Public Policy [IRPP], 2003), 157.   3 Thomas Courchene, ‘Hourglass Federalism – How the Feds Got the Provinces to Run Out of Money in a Decade of Liberal Budgets,’ Policy Options 25/4 (2004): 14.   4 Michael Prince, ‘SUFA: Sea Change or Mere Ripple for Canadian Social Policy?’ in Fortin et al., Forging the Canadian Social Union. For a different view, see Alain Noël, ‘Les trois unions sociales,’ Policy Options 19/9 (1998): 26.   5 Prince, ‘SUFA,’ 126.   6 Royal Commission on the Economic Union and Development Prospects for Canada, Report (MacDonald Commission) (Ottawa: Minister of Supply and Services Canada, 1985).   7 Privy Council Office, Consensus Report on the Constitution (28 Aug. 1992), available at http://www.pco-bcp.gc.ca/aia/default.asp?Language=E&Pag e=consfile&doc=charlottetwn_e.htm, accessed on 1 Aug. 2006.   8 See Mark R. Macdonald, ‘The Agreement on Internal Trade: Trade-offs for Economic Union and Federalism,’ in Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness, and Legitimacy (Don Mills: Oxford University Press, 2002), 138.   9 Margaret Biggs, Building Blocks for Canada’s New Social Union, Working

324 Sarah Fortin Papers No. F-02 (Ottawa: Canadian Policy Research Network [CPRN], 1996); original emphasis. 10 See Michael Mendelson, ‘Social Policy in Real Time,’ Caledon Papers (Ottawa: Caledon Institute of Social Policy, 1993); Joe Ruggieri, ‘Growing Up: The Evolution of Provincial Responsibility,’ in Harvey Lazar, ed., Canadian Fiscal Arrangements: What Works, What Might Work Better (Montreal: McGillQueen’s University Press, 2005). 11 In addition to these cash transfers, the federal government has also transferred, on various occasions, tax points to contribute to financing social programs. These tax points are usually counted in when Ottawa calculates cash transfers to provinces. This fiscal aspect to federal transfers to provinces won’t be considered in this chapter. For more information, one can refer to David B. Perry, Financing the Canadian Federation, 1867 to 1995: Setting the Stage for Change (Toronto: Canadian Tax Foundation, 1997). 12 For analyses regarding the impact of these reforms on the unemployed, see Ken Battle, ‘Relentless Incrementalism: Deconstructing and Reconstructing Canadian Income Security Policy,’ in Keith Banting, Andrew Sharpe, and France St-Hilaire, eds., The Review of Economic Performance and Social Progress (Montreal: IRPP, 2001); Tom McIntosh, ‘When Good Times Turn Bad: The Social Union and Labour Market Policy,’ in McIntosh, ed., Building the Social Union: Perspective, Directions and Challenges (Regina: Canadian Plains Research Center, 2002). 13 Vaillancourt, ‘Quebec Model,’ 182. According to Jim Stanford, these changes account for a quarter of the improvement of the federal government’s budgetary situation; see his ‘The Economic and Social Consequences of Fiscal Retrenchment in Canada in the 1990s,’ in Banting et al., Review of Economic Performance, 148. 14 For a detailed analysis of the interactions between social insurance programs and social assistance, see Tom McIntosh and Gerard W. Boychuk, ‘Dis-covered: EI, Social Assistance and the Growing Gap in Income Support for the Unemployed Canadians,’ in Tom McIntosh, ed., Federalism, Democracy and Labour Market Policy in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2000), 70. 15 See Alain Noël, ‘De la formule à l’enveloppe,’ Policy Options 26/1 (2005): 67. The equalization program is an unconditional transfer program begun in 1957 and entrenched in the Constitution, 1982. It is intended to ‘enable less prosperous provincial governments to provide their residents with public services that are reasonably comparable to those in other provinces, at reasonably comparable levels of taxation.’ See http://www.fin.gc.ca/ fedprov/eqpe.html, accessed on 1 Feb. 2007.

From Canadian Social Union to Federal Social Union, 1990–2006  325 16 Alain Noël, Power and Purpose in Intergovernmental Relations, Policy Matters 2/6 (Montreal: IRPP, 2001). 17 Tom McIntosh, ‘Intergovernmental Relations, Social Policy and Federal Transfers after Romanow,’ Canadian Public Administration 47/1 (2004): 31. 18 McIntosh and Boychuk, ‘Dis-covered,’ 70. 19 For an analysis of the evolution of federal and provincial spending in the area of social programs during this period, see Battle, ‘Relentless Incrementalism,’ 183–229. 20 See David Laycock and Greg Clarke, Framing the Canadian Social Contract: Integrating Social, Economic and Political Values Since 1940, Discussion Paper no. P/02 (Ottawa: CPRN, 2002); Gregory J. Inwood, ‘Federalism, Globalization and the (Anti-) Social Union,’ in Mike Burke, Colin Mooers, and John Shields, eds., Restructuring and Resistance: Public Policy in an Age of Global Capitalism (Halifax: Fernwood, 2000), 124–44. 21 See Denis Saint-Martin, ‘De l’Ētat-providence à l’Ētat d’investissement social: Un nouveau paradigme pour enfant-er l’économie du savoir?’ in Leslie A. Pal, ed., How Ottawa Spends 2001–2002: Power in Transition (Montreal: McGill-Queen’s University Press, 2001), 33; Gerard Boychuk, The Canadian Social Model: The Logics of Policy Development, CPRN Social Policy Architecture Papers, Research Report F-36 (Ottawa: CPRN, 2004). 22 Mel Watkins, ‘Politics in Time and Space of Globalization,’ in Wallace Clement and Leah F. Vosko, eds., Changing Canada: Political Economy as Transformation (Montreal: McGill-Queen’s University Press, 2003), 19. 23 Vaillancourt, ‘Quebec Model,’ 188. 24 Alain Noël notes that ‘a new welfare state is emerging in Canada, and it cannot be attributed only to fiscal retrenchment or ad hoc responses to new problems.’ But according to Noël, the main other factor that must be taken into account is Ottawa’s desire to keep control; see his Power and Purpose in Intergovernmental Relations. 25 Barbara Cameron and Judy Rebick, ‘The Social Union Framework Is a Step Forward,’ Globe and Mail (11 Feb. 1999), A11; Greg Marchildon, ‘A Step in the Right Direction,’ Inroads 9 (1999): 124. 26 According to Mark S. Wenfield, the environmental accord served as the model for SUFA; see his ‘Environmental Policy and Federalism,’ in Bakvis and Skogstad, Canadian Federalism, 134. 27 Ian Peach, Managing Complexity: The Lessons of Horizontal Policy-Making in the Provinces, The Scholar Series (Regina: Saskatchewan Institute of Public Policy, 2004). 28 This is true of the majority of non-constitutional intergovernmental agreements, both in Canada and elsewhere. For more on this subject, see

326 Sarah Fortin Johanne Poirier, The Functions of Intergovernmental Agreements: Post-Devolution Concordats in a Comparative Perspective (London: School of Public Policy, University College London, 2001). 29 Report to Premiers, 1995. 30 Wenfield draws the same conclusion with regard to the signature of the agreement on the environment; see ‘Environmental Policy and Federalism,’ 134. 31 See Paul Martin, Budget Speech 1995 (27 Feb. 1995), available at http:// www.fin.gc.ca/budget95/speech/SPEECHE.html; The Rt. Hon. Roméo Leblanc, Speech from the Throne (27 Feb. 1996), available at http://www. pco-bcp.gc.ca/default.asp?Language=E&Page=sftddt&doc=sftddt1996_ e.htm, both accessed on 1 Aug. 2006. 32 Human Resources Development Canada, ‘First Meeting of Federal-Provincial-Territorial Council on Social Policy Renewal,’ News Release (27 Nov. 1996), available at http://socialunion.gc.ca/news/96nov27e.html, accessed on 1 Aug. 2006. 33 See Joseph Facal, ‘Pourquoi le Québec a adhéré au consensus des provinces sur l’union sociale,’ Policy Options 19/9 (1998): 12. 34 The accord is available at http://www.socialunion.ca/news/020499_ e.html. For a more thorough analysis of SUFA from Quebec’s point of view, see Alain-G. Gagnon and Hugh Segal, eds. The Canadian Social Union without Quebec: Eight Critical Analyses (Montreal: IRPP, 2000). 35 For a presentation of the historic positions of Quebec, see Secrétariat aux affaires intergouvernementales canadiennes, Positions du Québec dans les domaines constitutionnel et intergouvernemental de 1936 à mars 2001 (3 Sept. 2003), available at http://www.saic.gouv.qc.ca/institutionnelles_constitutionnelles/positions_1936-2001_en.htm, accessed on 2 Aug. 2006. 36 Thomas J. Courchene, ‘ACCESS: A Convention on the Canadian Economic and Social Systems,’ Canadian Business Economics (Summer 1996): 3. 37 Jane Jenson and Gérard Boismenu describe this position in ‘A Social Union or a Federal State?: Competing Visions of Intergovernmental Relations in the New Liberal Era,’ in Leslie A. Pal, eds., How Ottawa Spends 1998–99: Balancing Act – The Post-Deficit Mandate (Montreal: McGill-Queen’s University Press, 1998), 66. Official documents include: Provincial/Territorial Council on Social Policy Renewal, New Approaches to Canada’s Social Union: An Options Paper (29 April 1997), available at http://www.scics. gc.ca/pdf/85006109_e.pdf, accessed on 2 Aug. 2006. On the Website www. socialunion.gc.ca, we find press releases and other documents prepared by different councils created to review social policies. 38 Courchene, ‘ACCESS,’ 12; emphasis added.

From Canadian Social Union to Federal Social Union, 1990–2006  327 39 See Jenson and Boismenu, ‘A Social Union,’ 70–1. The small provinces feared that this would mean the end of equalization and that they would thus be subjected to richer provinces. 40 Report to Premiers, 1995. Quoted in: ‘Premiers Release Report of the Ministerial Council on Social Policy Reform and Renewal,’ Press Release, Executive Council, Government of Newfoundland and Labrador, 28 March 1996, availabe at http://www.releases.gov.nl.ca/releases/1996/exec/ 0328n03.htm, accessed on 1 Feb. 2007. 41 Noël, Power and Purpose, 11. 42 See Canadian Intergovernmental Conference Secretariat, A 10-Year Plan to Strengthen Health Care (15 Sept. 2004), available at http://www.scics. gc.ca/cinfo04/800042005_e.pdf, accessed on 2 Aug. 2006; Government of Canada and Government of Manitoba, Moving Forward on Early Learning and Child Care – Agreement-in-principle between the Government of Canada and the Government of Manitoba (29 April 2005), available at http://www. gov.mb.ca/fs/childcare/pco_manitoba_e.pdf, accessed on 2 Aug. 2006. 43 Harvey Lazar, ‘Non-constitutional Renewal: Toward a New Equilibrium in the Federation,’ in Harvey Lazar, ed., The State of the Federation 1997: Non-constitutional Renewal (Kingston: Institute of Intergovernmental Relations [IIGR], 1998), 3; Bruno Théret, ‘Canada’s Social Union in Perspective: Looking into the European Mirror,’ in Fortin et al., Forging the Canadian Social Union, 197–226. 44 Disappointment was the common denominator of the submissions provided during the statutory examination of the agreement in the fall of 2002. See www.unionsociale.gc.ca/menu_f.html, accessed on Aug. 2006. See also the contributions in the Canadian Journal of Political Science 47 (Spring 2001), and Tom McIntosh, ‘As Times Goes By: Building on SUFA’s Commitments,’ in McIntosh, Building the Social Union, 1–11. 45 With regard to the environmental accord, Mark S. Wenfield notes: ‘However, the results of the harmonization experience to date suggest that good intergovernmental relations do not necessarily equal good substantive policy outcomes.’ In the same way, ten years after its adoption, the implementation of the agreement on internal trade still suffers important failures. See Wenfield’s Strengthening Canada: Challenges for Internal Trade and Mobility (Winnipeg: Internal Trade Secretariat, 2002). 46 See Fortin et al., Forging the Canadian Social Union. 47 Federal-Provincial-Territorial Ministerial Council on Social Policy Renewal, Three-Year Review Social Union Framework Agreement (June 2003), available at http://www.socialunion.ca/sufa/Three_Year_Review/e/tyrsufa. html, accessed on 2 Aug. 2006].

328 Sarah Fortin 48 Roger Gibbins, ‘Shifting Sands: Exploring the Political Foundations of SUFA,’ in Fortin et al., Forging the Canadian Social Union, 31–46. 49 Thomas J. Courchene, Accountability and Federalism in the Era of Federal Surpluses: The Paul Martin Legacy, Part II, IRPP Working Paper 2006-01 (Montreal: IRPP, 2006). 50 In February 2006 the Council of the Federation organized a conference on this topic. 51 See Quebec, Commission on the Fiscal Imbalance (CFI), A New Division of Canada’s Fiscal Resources: Report (Séguin Commission) (Quebec: Commission sur le déséquilibre fiscal, 2002); Harvey Lazar and France St-Hilaire, ‘He Said, She Said: The Debate on Vertical Fiscal Imbalance and Federal Health-Care Funding,’ Policy Options 24/2 (2003), 60–7. 52 For more on this subject see his famous ‘discours de Québec’ (Quebec speech), given on 15 Dec. 2005 at the Quebec City Board of Trade. 53 Premier Danny Williams, ‘Premier’s Speaking Notes,’ Press Release, 27 Oct. 2004, available at http://www.releases.gov.nl.ca/releases/2004/exec/ 1027n07.htm. Accessed Aug. 2006. 54 This privilege had already been granted to them in the middle of the 1980s when these provinces negotiated the right to set taxes and to receive royalties on the offshore resources. 55 See ‘Saskatchewan Wants Same Equalization Deal,’ Press Release, 31 Jan. 2005, available at http://www.gov.sk.ca/newsrel/releases/2005/01/31060.html, accessed on 1 Feb. 2007, and Tom Courchene, Confiscatory Equalization: The Intriguing Case of Saskatchewan’s Vanishing Energy Revenues, IRPP Choices (Montreal: IRPP, 2004). 56 Warren Lovely, ‘Killing the Golden Goose,’ Canadian Financing Quarterly (15 Apr. 2005); Thomas J. Courchene, ‘Vertical and Fiscal Imbalances: An Ontario Perspective,’ Background Notes for a Presentation to the Standing Committee on Finance, House of Commons, 4 May 2005, available at http://www.irpp.org/miscpubs/archive/tjc_050504.pdf , accessed on 1 Feb. 2007. 57 According to the minister of finance. Note that the numbers include equalization payments and transfers made in the form of tax points. 58 Claude Ryan, a former leader of the Quebec Liberal Party, gave SUFA a cold reception and made a severely critical analysis of it; see his ‘The Agreement on the Canadian Social Union as Seen by a Quebec Federalist,’ in Gagnon and Segal, Canadian Social Union, 209–25. 59 See Secrétariat aux affaires intergouvernementales canadiennes, ‘A word from Québec’s Premier,’ in The Council of the Federation: A First Step towards a New Era in Intergovernmental Relations in Canada (Quebec: Government of

From Canadian Social Union to Federal Social Union, 1990–2006  329 Quebec, 2004), 5; available at http://www.saic.gouv.qc.ca/publications/ conseil_federation_en.pdf, accessed on 1 Feb. 2007. 60 See André Burelle, ‘The Council of the Federation: From a Defensive to a Partnership Approach’ (Oct. 2003), available at http://www.irpp. org/miscpubs/archive/federation/burelle.pdf; Claude Ryan, ‘Quebec and Interprovincial Discussion and Consultation’ (Oct. 2003), available at http://www.irpp.org/miscpubs/archive/federation/ryan.pdf, both accessed on 2 Aug. 2006. 61 For an examination of scenarios to reform the equalization program and their implications on provincial budgets, see Wade Locke and Paul Hobson, An Examination of the Interaction between Natural Resource Revenues and Equalization Payments: Lessons for Atlantic Canada, IRPP Working Paper 2004-10 (Montreal: IRPP, 2004).

12 Social Economy, Social Policy, and Federalism in Canada yves vaillancourt and luc thériault

Reflecting on the links between the social economy and Canadian federalism means also examining social policy and its evolution over time, along with recent social policy changes in Quebec and Canada. This inevitably leads to an interest in the interfaces between public policy and Canadian federalism. We make no claim here to original work. The literature on the history of social policy and constitutional debate in Canada speaks volumes: most social policy specialists in Canada have to take the constitutional dimension into account, and conversely, many constitutional reform specialists have to consider social policy issues. What is newer, though, is that since the early 1990s it has been virtually impossible to talk of the social policy reform under way in Quebec and Canada without talking in the same breath of the social economy or third sector, or at least of that part of the social economy that maintains links with social policy, particularly with policy taking the form of proximity services to socially vulnerable populations. This approach to the links between social policy reforms and civil society players is similar to that seen in certain writings of the Caledon Institute of Social Policy (CISP) and the Canadian Policy Research Networks (CPRN), which stress the need to be open to a new social architecture for Quebec and Canadian social policy.1 This ‘new architecture’ for social policy specifically involves being open to a new model in which government intervention continues to be valued, as it was at the height of the welfare state, but brings with it innovative mechanisms whereby the État stratège agrees to construct social policy with civil society players, notably those in the social or solidarity-based economy, in order to push back marketization and advance the general interest or common good.2 In previous writings, we have emphasized that the social economy

Social Economy, Social Policy, and Federalism in Canada  331

is an integral part of a Quebec model of ‘second generation’ social policy without, however, implying that certain fundamental features of the Quebec configuration could neither exist nor be developed elsewhere in Canada or even the world.3 In fact, our research over the past ten years into the intersections between social policy and social economy or third sector initiatives was informed by our discussions with European and Latin American research teams interested in those issues. In Europe researchers with a great interest in social policy often also look closely at the practices of the social economy and the third sector, and vice versa. This observation corresponds to a central conclusion of the major collective work, published under the direction of Adalbert Evers and Jean-Louis Laville, and entitled The Third Sector in Europe.4 The same cannot be said of the United States, insofar as the U.S. literature on the third sector has little in common with the literature on social policy, except perhaps on the role of third sector organizations in welfare reform. Certainly, the interfaces between the social economy and social policy are less tangible in social policy areas where there is a form of monetary transfer to individuals (e.g., employment insurance, old age security, and pension plans) than in social policy areas where collective services are delivered (e.g., home care services, child care services, social housing, and miscellaneous social services). In this chapter, our aim is to examine the links woven in Canada over the past ten years or so among the social economy, changing social policy, and Canadian federalism. First, we point to two traditions of research on the third sector in the international literature, one emphasizing non‑profit organizations, the other the social economy. Then we analyse trends in these two research traditions within Canada over the past decade. This leads us to note that, until 2003, research on the third sector associated with the social economy was well rooted in Quebec, while research associated with the non-profit sector was established in the rest of Canada; but we will see that this segmentation tended to blur in 2004 and 2005, insofar as both federal governments headed by Paul Martin took the concept of social economy into account and adopted policies that made room for the social economy. Finally, in a third section, we look at the case of child care services, which stood at the centre of an important debate on social policy reform involving the enhanced presence of the social economy and had repercussions on intergovernmental relations under the two Martin governments. We conclude by presenting some elements of critical analysis.

332 Yves Vaillancourt and Luc Thériault

Traditions of Research on the Third Sector In the collective work they directed on the third sector in Europe, Evers and Laville identified two main research traditions in this field: an U.S. tradition focusing on the non-profit sector, and a European tradition focusing on co‑operatives and the social economy. According to these authors, in recent international scientific debates on the third sector, the U.S. tradition had tended to hold sway, and the European tradition had thus been left on the sidelines. The plurality and richness of the resulting scientific analyses were all the poorer for this. According to Evers and Laville, the U.S. tradition of research on the third sector, or U.S. legacy, emphasized the non-profit sector and the voluntary sector, focusing on the sociohistorical specificities known in the English-speaking countries, particularly the United States. In that tradition, the third sector is conceptualized primarily on the basis of these two dimensions. The result is that co‑operatives and other social economy enterprises are excluded from the third sector concept, on the pretext that they can generate surpluses that are tantamount to profits and that they can make more room for salaried employment than for the volunteer sector. The strong influence of this current stems from the comparative research project on the third sector conducted at Johns Hopkins University.5 The conception of the third sector arising from this project was, over the past fifteen years, the vision that most marked the international literature on this topic. This comparative research, owing to an impressive funding package provided among others by major U.S. and European foundations, gave rise to studies that measured the presence of the non‑profit sector in no fewer than twenty-six countries. This vision had a major impact on the work found in such prestigious periodicals as Nonprofit and Voluntary Sector Quarterly and Voluntas: International Journal of Voluntary and Nonprofit Organizations, a publication of the International Society on Third Sector Research (ISTR).6 On the other hand, also according to Evers and Laville, the European research tradition focuses on the social economy (co‑operatives, mutual benefit societies, and non-profit associations) and on the democratization of the economy and society. It is fuelled by the experimentation and sociohistorical institutionalization that have prevailed in a number of European countries, France, Germany, Belgium, and Italy among them. It has been legitimized for the past twenty years or so by certain policies developed within the political and bureaucratic bodies of the

Social Economy, Social Policy, and Federalism in Canada  333

European Union that refer explicitly to the social economy and its three major components, namely, mutual benefit societies, co‑operatives, and associations. By highlighting the specificity of the European tradition, which gives weight to the sociohistorical and theoretical contribution of social economy initiatives, Evers and Laville do not seek to diminish the legitimacy and relevance of the U.S. tradition and the theoretical inputs arising from it in public and scientific debates on the third sector. Rather, they suggest that, in order for debates in universities and organizations concerning international, continental, and national policy to be meaningfully broadened and enriched, more room needs to be given to dialogue between the two major traditions. Evers and Laville’s thesis has twofold merit. On the one hand, it has the advantage of decompartmentalizing and enriching debate in national and international associations interested in the third sector concept.7 On the other hand, it helps cast new light on the scientific debate and, more broadly, the public debate concerning the third sector, non-profit organizations (NPOs), and the social economy in Quebec and Canada as a whole.8 In fact, the distinction between these two historical traditions concerning the third sector is bound to lead to marked analytical and strategic fertility if we can successfully apply it to the entire history of the third sector in Quebec and the rest of Canada. When one looks more closely at the decade from 1995 to 2005, one can put forward two hypotheses. First, from 1995 to 2003, the European tradition was predominant in Quebec, while the U.S. tradition dominated in the rest of Canada. Then, from 2003 to January 2006, the two traditions engaged in greater dialogue, with the result that, among other things, the European tradition penetrated to some degree into Canadian civil society and federal government policy. Third Sector and Social Economy Up until 1995 the concepts of third sector and social economy were little used in the scientific literature and in public debate in Canada and Quebec.9 But this in no way means that certain practices relating to the third sector and social economy did not exist, as may be seen from the following: • The history of the co‑operative movement began more than a century ago, in both English and French Canada.

334 Yves Vaillancourt and Luc Thériault

• The often-neglected history of mutual benefit societies also began in the late nineteenth century. • Private non-profit organizations, long known as charities, or simply private organizations, were part of the evolution of social policy not only in Quebec but also throughout Canada from the early twentieth century onward. Private non-profit organizations therefore held a leading place both in Quebec legislation concerning public assistance, which was prevalent from 1921 to 1971, and in the federal legislation known as the Canada Assistance Plan (CAP) that was implemented from 1966 to 1996. In both series of legislation, the state actually stipulates that service providers from the non-profit private sector may complement the offering of public assistance services from the public sector. • The federal government, from the 1970s until its withdrawal from the funding of new social housing programs in 1993, encouraged the development in the provinces and territories of new housing projects that gave preference to housing co‑operatives and NPOs. • Community organizations have held a significant place in the evolution of Quebec social policy since the mid-1960s. • The rise of community economic development has been seen in various regions of Canada, including Quebec, since the early 1980s. So it is clear that the two traditions of research on the third sector that Evers and Laville talk about have been present de facto in the history of economic and social development in Canada for many decades. But in the scientific literature and public debate, the terminology specific to the two traditions is quite recent. For instance, the concept of social economy has been used in public debate and the scientific literature only for the past ten years or so. It appeared in Quebec in 1995 and after 2003 spread rapidly to the rest of Canada. From 1995 to 2003: Two Solitudes Quebec Government Recognizes Social Economy The social economy has had a significant place in the history of Quebec’s economic and social development since the late nineteenth century, coming particularly to the fore following the Women’s Bread and Roses March in spring 1995. It is important to grasp clearly that recognition of the social economy was first of all a demand expressed by

Social Economy, Social Policy, and Federalism in Canada  335

social movements before it became a government initiative. Therein lies the originality of the Quebec institutional context, which saw the emergence of public policy aimed at supporting the development of social economy projects. In this context, the Summit on the Economy and Employment, in the fall of 1996, was a defining historical moment for the recognition and development of the social economy in more than twenty areas of socioeconomic activity (child care centres, home care services, social housing, sustainable development, social tourism, forestry co‑operatives, etc.). Many of these social economy initiatives that garnered support from the social and political players attending the 1996 Economy and Employment Summit were thus, in an innovative way, in line with proposals for social policy reform.10 It should be noted here that the Chantier d’économie sociale organization, as early as the 1996 Summit, played an intermediary role between social movements and the Quebec government to foster greater institutionalization of the social economy. The definition proposed by the Chantier and accepted by the socioeconomic and sociopolitical players attending the Summit was broad and inclusive.11 It made room for market and non-market components, to use terminology often heard since. In other words, it made room not only for enterprises selling or charging for their goods and services (e.g., child care centre services at $7 a day per child), but also for community or co‑operative organizations receiving public funding and offering their services without charge to vulnerable populations, for instance, a community organization offering labour force integration services to jobless individuals with mental health problems. Over the years, though, the definition of the social economy has narrowed in certain settings, and this has had the effect, with regard to public perception, of reducing the social economy merely to its market components. That is why some people consider that the policy of recognition of community organizations adopted during the 1990s and 2000s lies outside the framework of the social economy. The 1996 definition, which includes community service-oriented and advocacy organizations in the large social and solidarity-based economy family, seems preferable to us.12 From 1996 to 2003 the recognition of the social economy received at the 1996 Summit on the Economy and Employment translated into the development of many social economy practices, some of which were associated with original social policy reforms. Indeed, it should be specified that recognition was also given to community organizations that, within the inclusive definition of the social economy, are part of

336 Yves Vaillancourt and Luc Thériault

what some parties call the non‑market social economy. In the context of the work carried out by the Laboratoire de recherche sur les pratiques et les politiques sociales (LAREPPS), we have often looked at the question of the emergence of these new socioeconomic practices and policies that can lead to social innovations. That is what led us to talk of the ‘fragile’ but real emergence of a new, more democratic, solidarity-based development model found, for instance, in the fields of social housing, daycare services, and development of the employability of socially vulnerable individuals. The Quebec government intervenes with respect to regulations and funding, but leaves social economy players considerable freedom with regard to the management and delivery of services.13 Thus, in certain areas of changing social policy, notably social housing, child care centres, and domestic home services, the Quebec government favours accredited social economy service organizations over private for‑profit organizations. On the other hand, in other fields, such as residential resources for functionally dependent elderly people, over the past twenty years Quebec has left the door wide open to competition from the commercial private sector organizations. Federal Government Recognizes Voluntary and Non-profit Organizations The fact that, until 2003, all of Canada except Quebec was marked by the American tradition rather than the European third sector tradition does not mean that the social economy did not emerge outside Quebec. It means this concept, subjectively and politically, has no resonance among the players concerned in both civil and political society, with rare exceptions, such as Jack Quarter, who has been using the concept for more than fifteen years.14 Some significant events, such as the following, stemming from the federal government, civil society organizations, and researchers illustrate this statement: 1. The Voluntary Sector Initiative (VSI) – known in French as the ISBC (Initiative du secteur bénévole et communautaire, or Voluntary and Community Sector Initiative) – was developed by the federal government from 1999 to 2004. (This initiative received far more exposure and commentary in English Canada than in Quebec.) The federal government invested $94 million over five years to support the VSI. This budget was used to run the National Survey of Nonprofit and Voluntary Organizations (NSNVO). From

Social Economy, Social Policy, and Federalism in Canada  337

1999 to 2004, the VSI led to numerous meetings, the establishment of various working groups, and the drafting of numerous papers that enabled government leaders and senior officials as well as leaders of non-profit and voluntary organizations to work together to identify priorities, objectives, and the means of action. The VSI was evidence of a degree of recognition of the voluntary and community sector by the federal government, a recognition that was developed in a context of somewhat asymmetrical relations between the state and the third sector.15 2. Canadian social organizations that conducted studies on the third sector did so most often by adopting the definition and theoretical framework of the U.S. tradition. To be convinced of this, one has but to look at the work on the third sector carried out by the Canadian Centre for Philanthropy,16 the Canadian Policy Research Networks (CPRN), the Canadian Council on Social Development (CCSD), the Caledon Institute of Social Policy, and the Queen’s University School of Policy Studies (Kingston, Ontario). 3. Since the late 1990s and early 2000s, a number of recognized social policy specialists have begun to take an interest in the third sector by adopting the dominant definition of the Johns Hopkins University project. Consider, for instance, the recent writings of Keith Banting, Kathy Brock, Thomas Courchene, Judith Maxwell, and Susan Phillips,17 not to mention some of the literature in the social policy field concerning disabled people that points to growing sensitivity as to third sector organizations’ role in advocacy and the alternative delivery of services.18 In the fall of 2002 and winter of 2002–03, to discuss the interfaces between the social economy (or third sector) and changing social policy, Yves Vaillancourt, one of the contributors to this book, toured Canada, visiting nine provinces to initiate a discussion based on the findings of a book published in English concerning the configurations found between the state and the social economy in four Canadian provinces, namely, Saskatchewan, Ontario, New Brunswick, and Quebec.19 In the public appearances during this tour, the idea of fostering a dialogue, or even a co-habitation, between the Canadian and the Quebec third sector traditions was put forward. In the locations visited, in particular Manitoba, British Columbia, Newfoundland, and Cape Breton, in Nova Scotia, the Quebec social economy experiment elicited a great deal of interest and echoed similar experiments under way in those regions.

338 Yves Vaillancourt and Luc Thériault

During the two short-lived Martin governments in Ottawa, from December 2003 to January 2006, the importance and visibility of the concept of social economy did indeed increase considerably in Canada outside Quebec. Closer Cohabitation in Canada between Social Economy and Third Sector The Liberal government of Jean Charest, which came to power in Quebec in April 2003, does not, unlike the previous PQ government, appear to have clear ideas on the social economy. This may be seen in the shilly-shallying concerning daycare centres since late 2003. Few Charest government spokespersons are able to incorporate the concept of social economy in their public statements. The only one to have done so was Minister Michel Audet, who had responsibility for regional development. His tone was reassuring at the National Community Economic Development (CED) Conference, in Trois‑Rivières, in May 2004 when he publicly announced the renewal of a $450,000 annual subsidy to support the work of the Chantier d’économie sociale. But when one looks at what he actually said,20 one sees that he showed interest solely in the market component of the social economy and did so in a ‘quasimarket’ way. Not without having given several signs boding the worst (i.e., abandonment of a universal policy), the Charest government, to start with, basically maintained the parameters of the previous policy while raising the cost of daycare places from $5 to $7 a day for each child. Nevertheless, in fall 2005, it launched into projects to restructure the governance of daycare centres, which gave rise to serious concern in the daycare network and, more broadly, among stakeholders interested in promoting the social economy. Paradoxically, just as the social economy seemed to be losing favour with the new Charest government in Quebec City, Paul Martin’s two governments,21 in power in Ottawa from December 2003 to January 2006, showed a strong interest in the social economy. Many federal departments did not wait for Paul Martin to be formally installed in power to begin showing an interest in the social economy, since Jean Chrétien’s replacement by Paul Martin had been scheduled several months ahead. Thus, senior officials in the Department of Human Resources Development Canada (HRDC) had organized a one‑day symposium on the social economy in early December 2003, with a view to preparing the ground.

Social Economy, Social Policy, and Federalism in Canada  339

Following the June 2004 elections, the Liberal Party of Canada held on to power, but with a minority government. So Paul Martin found himself at the head of a fragile government that could be forced to return to the electorate at any moment. Despite this, the issue of the social economy continued to hold an important place in the government program. Two Speeches from the Throne, in February and fall 2004, mentioned the social economy. In Prime Minister Martin’s response to the Throne Speech, he used for the first time an analogy that would subsequently be repeated in speeches by federal government representatives: ‘We intend to make the social economy a key part of Canada’s social policy tool kit.’22 While frequently used by the prime minister and his cabinet, this promising expression was not often explained, though. Subsequently, several Martin government spokespersons, including Parliamentary Secretary to the Minister of Social Development with special emphasis on Social Economy Eleni Bakopanos repeated that ‘the social economy has emerged as a significant new priority for the Government of Canada.’23 The Martin government’s first budget speech, for 2004–05, announced $132 million in new funding over five years to support the social economy in Canada as a whole. This sum was primarily earmarked for improving ‘the access of social enterprises to programs and services for small and medium-sized enterprises.’24 Within the overall envelope, an amount of $15 million over five years was to pass through the Social Sciences and Humanities Research Council of Canada (SSHRC) to support partnership-oriented research on the social economy in Canada as a whole. In November 2005 the SSHRC also announced funding for four multidisciplinary research teams with the mandate to study the reality and issues with respect to the social economy in four major regions of the country, namely, the Atlantic Provinces, Quebec, Southern Ontario, and the Prairie Provinces (Manitoba and Saskatchewan). Two other similar grants were announced by the SSHRC in early 2006, one for the region of Alberta and British Columbia and the other for Canada’s Far North. The social economy was also mentioned in the speeches made by Minister for Social Development Canada (SDC) Ken Dryden in the two Martin governments. SDC and Canada Economic Development (CED) were, in fact, the two federal departments with the more explicitly stated mandate to promote social economy projects. But, rather surprisingly, these two departments did not always seem to be on the same page in terms of how the social economy operates, nor did they appear

340 Yves Vaillancourt and Luc Thériault

to define it in the same way. It was as if SDC were more interested in the non-market social economy, and CED in the market social economy. Paradoxically, while the federal government was beginning to look at the issue of the social economy, it seemed no longer to be interested in the VSI. Launched for five years (1999–2004), this experiment was not renewed at the end of that period, even though the latest evaluations produced in fall 2004 were highly positive and conducive to its renewal. But the VSI did also come under Social Development Canada. Curiously, the issues of the VSI and the social economy do not appear to have been dealt with under a consistent, integrated government approach. This could be because the VSI, by opting for the U.S. tradition of the third sector, never saw itself in the market component of the social economy represented by social economy enterprises and co‑operatives. Moreover, the social economy that the Martin government was interested in appeared to want to focus exclusively on market activities. Thus, since the VSI had little if any interest in associations and non-profit organizations that had market activities, whereas the social economy that the federal government wished to support appeared to be interested only in market activities, it comes as no surprise that the two third sector approaches stood side by side like two solitudes within the same government. Nonetheless, while the federal government’s definition of the social economy (just like the Quebec government’s) was quite restrictive and expressed in economic terms, this government sometimes appeared to exhibit a broader vision and to have a social bent. As a result, Ken Dryden, in his speeches, did not miss the opportunity to associate the social economy with the creation of a Canadian ‘social policy tool kit,’ one of whose main components would be the development of ‘a broader federal policy framework to establish the foundations for the social economy across Canada.’ He thus gave concrete examples of the social economy that refer not only to economic development, but also to social development, stating that the social economy is present everywhere – a daycare centre, ‘a housing co‑op, a seniors support service, or a local community economic development organization.’25 These are the types of manifestations of the social economy that particularly interest us and that we shall be looking at more closely. Federal Presence in Early Child Care Services Surprisingly, the social policy issues involving interfaces with the social economy in which the federal government appears to have been the

Social Economy, Social Policy, and Federalism in Canada  341

most proactive over the past few years are precisely those issues in which it intervenes indirectly. In fact, the federal government appeared little concerned with integrating the social economy into social policy programs such as old age security, employment insurance, group services for veterans and Aboriginal communities, or initiatives to combat child poverty. But those are indeed social policy fields over which the federal government has full jurisdiction and in which it may intervene directly through its own programs and not via provincial and territorial programs. In the social policy areas that come clearly under federal jurisdiction, then, might it not be reasonable to imagine that the social economy could one day become a source of social innovation, as it has been in certain social policy programs under provincial jurisdiction? The question needs to be asked. But in the meantime, the social policy issues in which the federal government has been interested in the past few years, and in which it has established a link with social economy initiatives, come under social policy fields, such as social housing, or programs concerning the disabled, and early learning and child care services. The daycare portfolio, which was central to the Martin governments’ action and to federal–provincial relations from 2003 to 2006, will provide a helpful illustration of this. Federal–Provincial Interfaces with Respect to Daycare Services after 1996 From 1966 to 1996 the Canada Assistance Plan (CAP) was in effect, and at that time 77 per cent of the daycare services under provincial responsibility were delivered by non-profit organizations. Management and delivery of this type of services, which are part of the social economy, were particularly prevalent in provinces that had elected social demo­ cratic governments, for example, Manitoba, Saskatchewan, British Columbia, and Quebec. But some provinces, Alberta, New Brunswick, and Newfoundland among them, had a larger proportion of service suppliers from the private for‑profit sector. Moreover, owing to the somewhat selective spirit of the CAP, the provinces were invited to implement a restrictive policy regarding daycare services, targeting low-income families. In actual fact, a number of provinces pushed back the limits that were imposed on them and developed their daycare services during the 1970s. But during the 1980s and 1990s, in the context of the budget cutbacks that were rampant in both Ottawa and the provinces, the number of daycare places held steady in Canada as a whole, while advancing slightly in some provinces, including Quebec.26 Since the demise of the CAP, in April 1996, the federal government

342 Yves Vaillancourt and Luc Thériault

has continued to participate in the joint funding of provincial and territorial daycare service programs. It does so through the Canada Health and Social Transfer (CHST), a comprehensive program of federal trans­ fer payments that uses the single block funding method and that underwent a 30 per cent crash diet when it appeared in 1996. Since the late 1990s, the federal government, whose surpluses were rising farther than expected, signed agreements with the provinces to increase the transfers paid under the CHST, but with the proviso that the increases granted would be devoted exclusively to provincial health care expenditures. In other words, the other components of the CHST earmarked for provincial spending on post-secondary education, income security and social services, including the components used for child care services, received the smallest share, and their real value declined constantly from 1996 to 2006. Quebec Child Care Centre Reform: A Benchmark for the Federal Government Ironically, it was as a result of the disappearance of the CAP in 1996 that Quebec was in a position to launch a daring child care centre policy, a policy that would break with the selective approach of previous decades and rapidly become a benchmark for socially progressive forces in Canada as a whole. In this policy, implemented from 1997 onward, we can identify the following features:27 • The choice of a public policy focusing on structuring the supply of services rather than supporting demand. • The universal focus making it possible to target the needs of children aged 0–6 years in all social classes, and not only children of low-income families, whence the objective of increasing the number of places significantly and rapidly in order to reach 200,000 in 2006. • Preference, but not exclusivity, given to suppliers of services from the social economy sector, this being conducive to parents’ participation in the democratic management of child care centres. • Mixed funding, building primarily on the financial contribution from the Quebec government ($1.4 billion in 2005), but calling on user parents for a modest additional contribution ($7 a day per child) is compatible with the principle of accessibility or affordability. In this mixed funding, the public purse accounted for approximately 85 per cent of the costs of the provincial program. • A dual goal emphasizing the child’s emotional, cognitive, and social

Social Economy, Social Policy, and Federalism in Canada  343

development and encouraging women’s access to the labour market. • Government regulations to ensure quality standards. • Unionization of a third of the employees, which had the structuring effect of improving working conditions for child care workers throughout the sector. In the early 2000s the Quebec child care centre reform began to become a benchmark for those interested in the development of early learning and child care services in social organizations, social movements, and political spheres in several regions of Canada. Through the dissemination of papers on the topic from universities and social groups, the Quebec reform elicited growing interest in individuals and organiations concerned with promoting better family social policies across the country. But the federal government took its time reacting. Child Care Services under the Chrétien Governments: More Promises than Progress It was not until the Martin government came onto the scene in December 2003 that the federal government took more serious initiatives. Yet, over the previous ten years, under various majority Liberal governments headed by Jean Chrétien (from 1993 to 2003), the child care services portfolio had been presented on several occasions as a priority in the Liberals’ platform. In the Red Book presented during the 1993 electoral campaign, the promise was made of a national child care program that would be funded 40 per cent by the federal government, 40 per cent by the provinces, and 20 per cent by parents. Then, during 1994, the same promise was repeated in public debates and before parliamentary committees concerning the Axworthy reform, which came to nothing when the re‑engineering proposed in Paul Martin’s February 1995 budget was preferred to it.28 During the ensuing years, the Chrétien government, fully absorbed in its pursuit of a balanced budget, forgot some of these promises of social reform, including the development of a national daycare program. Nonetheless, in March 2003, during the Chrétien government’s final year, ‘the federal, provincial and territorial governments [without Quebec] concluded a new multilateral framework agreement on early child learning and care (MFA-ECLC) […] For the first time, federal funds can be channelled into developing the supply of quality care: capital and operating costs, fee subsidies,

344 Yves Vaillancourt and Luc Thériault

wage enhancements, training, professional development, and quality assurance […] Moreover, unlike CAP’s provisions, this agreement permits subsidies to commercial child care operations.’29 With the Multilateral Framework Agreement on Early Learning and Child Care, the federal government undertook to pay $1.05 billion to the provinces and territories over five years, for fiscal years 2003–04 to 2007–08. Although it did not take part in drawing up the multilateral initiative, the Quebec government was to receive its share of federal funds, or $247 million over five years. Child Care Services: A Priority for Both Martin Governments When he took over from Jean Chrétien as head of the Liberal Party of Canada and the federal government in December 2003, Paul Martin had program objectives and elements through which he intended to distinguish himself from his predecessor. As we saw earlier, the social economy was featured in his program. The objective of promoting the establishment of a national daycare program, taking its inspiration from the Quebec child care centre model, was one of his major priorities. For the Martin team, the federal Liberal government’s action in the daycare sector during the 2000s was to be similar to what a previous Liberal government had done, during the 1960s, in the health care field. Thus, the announcement in the Speech from the Throne on 2 February 2004: ‘Readiness to learn is shaped at the earliest stages of childhood. That is why early childhood development is a national priority. That is why we will accelerate the implementation of the federal-provincial agreement on early learning and care.’30 But as we know, the first Martin government lasted only a few months. It was during the spring 2004 electoral campaign that the promise to invest $5 billion over five years for a national early learning and child care services system was often mentioned. Occasionally, federal Liberal Party spokespersons let it be understood that the daycare services program they were referring to took its inspiration from the Quebec child care centre model, and this clearly, but not always explicitly, implied that the social economy was to be part of the arrangement. Martin returned to power, but this time he was at the helm of a minority government. Throughout the second Martin mandate, the early learning and child care services portfolio was indeed treated as a priority by Ken Dryden, the minister responsible for the portfolio. Since the child care services field was under the provinces’ juris-

Social Economy, Social Policy, and Federalism in Canada  345

diction, the federal minister responsible for the portfolio, in order to move forward in this area, had to reach a successful agreement with the provincial and territorial governments. He had to work to establish a consensus through federal–provincial meetings with his provincial counterparts. To pull off this delicate operation, he could also apply himself to presenting arguments in public aimed at garnering support from public opinion. And that is just what he set about doing throughout the fall of 2004, through his interventions in Parliament, but also by means of speeches given at conferences or in meetings with civil society groups. To understand clearly the main steps taken by the federal government in the Early Learning and Child Care (ELCC) portfolio during the second Martin government, we should remember the following elements: • During the spring 2004 electoral campaign, a promise from the Liberal Party of Canada to spend $5 billion over five years for a national ELCC program. • In fall 2004, identification through federal–provincial–territorial meetings of social development ministers of the main principles to be highlighted in future federal–provincial–territorial agreements concerning ELCC. • In the February 2005 federal budget speech, announcement of $5 billion over five years set aside for implementation of the ELCC policy. • During 2005, negotiation and signing of bilateral agreements in principle on ELCC between the federal government and the provincial governments. • In fall 2005, negotiation and signing of three funding agreements concerning ELCC with three provincial governments, namely, Manitoba, Ontario, and Quebec. • The agreement with Quebec was signed on 28 October 2005. Under this agreement, the estimated amounts of Canada’s contribution to Quebec were to be $152.8 million in 2006–07, $269.7 million in 2007–08, $269.1 million in 2008–09, and $268.4 million in 2009–10.31 In short, the process established for reaching funding agreements involved, first, the signing of an ‘agreement in principle,’ second, the drafting of a ‘[provincial] action plan corresponding to the wording and spirit of the agreement’ and, third, the signing of a ‘funding agreement.’

346 Yves Vaillancourt and Luc Thériault

In presenting his ELCC policy, Minister Dryden, both in the House of Commons in Ottawa and elsewhere, stressed that it involved a ‘national system’ that had to be defined and applied in a climate of federal–provincial cooperation and, at the same time, specified that ‘flexibility’ was needed in order to overcome a large number of hurdles before putting the program in place. This is how Dryden presented the proposal in the House of Commons on 19 October 2004: It is time for a national early learning and child care system. It is time because in the way in which we live, in what we want and need for our children for the future, the Canadian people have said that it is time.   We have a long way to go. It is a big task. As we have learned through our history, we cannot do it alone. We have to work with others, together – with the provinces and territories, with our other partners […] We have to be flexible. Find accommodation. Discuss. Work out. Compromise. Rigid ideologies don’t work for us.32

In speaking here of a single ‘national system,’ Minister Dryden was setting the bar very high by referring to the objective of setting up a panCanadian national program in an area of provincial jurisdiction. Seen from a provincial perspective, in particular Quebec’s, such an objective was not without ambiguity, since the said Canadian ‘national system’ was to stem from the coherent juxtaposition of thirteen provincial and territorial systems. The federal minister was well aware that national consistency in the ELCC field in Canada could emerge only insofar as the federal government, using its spending power and offering the provinces and territories ‘conditional grants,’ could bring those very provinces and territories to develop provincial and territorial ELCC systems that would share a number of common characteristics. In that regard, Dryden was relying on the provinces for their acceptance of and compliance with certain common principles likely to foster a degree of consistency in Canada as a whole, all the while being aware that provinces and territories did not all share the same focus with respect to family social policy. That was no small challenge. In early November 2004, a federal–provincial–territorial meeting of ministers concerned with the ELCC portfolio took place in Ottawa. This meeting enabled Minister Dryden and his provincial colleagues to agree on four principles that were intended to be the equivalent in the ELCC field of the five principles of the Canada Health Act. Subsequently, these four principles would be summarized and expressed

Social Economy, Social Policy, and Federalism in Canada  347

in the bilingual acronym, ‘QUAD’: ‘Q’ for Quality, ‘U’ for Universally inclusive, ‘A’ for Accessibility, ‘D’ for Developmental. In presenting these four principles on 12 November 2004, at a wellattended national conference of the Canadian Council on Social Development held in Winnipeg on early learning and child care, Ken Dryden, referring to the federal–provincial conference of a week earlier, explained the meaning of the four principles in these terms: We agreed to the basic definitions for each of those QUAD principles. That quality means regulated. To ensure that there are basic standards for health and safety, staff training and ratios and other elements we know are important for healthy child development […] inclusive […] universality […] means the system should be open, without discrimination, to all children, including children with special needs. Accessibility, meaning that the system is affordable for and available to parents. Developmental, meaning programs promoting the achievement of cognitive, physical, emotional and social development goals for children reflecting the family and community context.33

That is what Ken Dryden liked to present in November 2004 as ‘the basis for a national early learning and child care system.’ It is interesting to compare this basis with that identified by the experts invited by the Canadian Council on Social Development (CCSD) who had been responsible for preparing the discussion papers and presenting them at the national conference in Winnipeg. These specialists, notably Rianne Mahon, on the one hand, along with Gordon Cleveland and Michael Krashinsky,34 expressed views that were well in tune with the QUAD principles. But they drew attention to the importance of a fifth principle inspired by both the old CAP tradition and the Quebec daycare centre model. This principle was the equivalent of the fifth principle in the Canada Health Act. It looked at the management and delivery of services, specifying that it was preferable that these should be performed by organizations from the public sector or the non-profit private sector rather than by commercial private sector organizations. This was a way of referring to the preference in principle found in the Quebec daycare centre model, that is, the preference given to the management and delivery of services coming under the social economy. But this fifth principle was not formally incorporated into the QUAD, no doubt because the federal government knew it would be unable to impose this in its nego-

348 Yves Vaillancourt and Luc Thériault

tiations with those provincial governments that were attached to the delivery of services through the private for‑profit sector. Thus, the four principles summarized by the acronym QUAD remained throughout 2005 at the heart of negotiations between the federal government and the provinces. They are found in the agreements in principle signed with all the provinces and the funding agreements signed with three provinces (Manitoba, Ontario, and Quebec). As the negotiations advanced, Minister Dryden fell into the habit of talking less spontaneously of a single ‘national system’ of ELCC, and more of provincial systems in the plural inspired by a ‘shared national vision based on the QUAD principles, which the federal, provincial and territorial governments all agreed on last fall.’35 Then the minister of social development added with great optimism: ‘And the great thing is that in five or 10 years this will have grown and advanced in a way we cannot even imagine today […] We will no longer have a mosaic of good and bad services or missing services. We will have, in each province and territory, a comprehensive early learning and child care system.’36 As Dryden was expressing himself in these terms on 24 November 2005, he was about to embark on an electoral campaign which led, on 23 January 2006, to the loss of power for the Liberal Party of Canada and the arrival in power of the Conservative Party of Canada, a political party which preferred a family social policy based on supporting demand (e.g., the $1,200-a-year family allowance for each child aged under 6), rather than supporting supply (e.g., the ELCC policy). As a minority government fully aware that it could be thrust into an electoral campaign from one month to the next, the Martin government, between June 2004 and January 2006, did everything it could to implement its national ELCC policy successfully, that is, to sign agreements in principle and funding agreements with as many provinces as possible so as to be in an advantageous position to speak of its achievements during the upcoming electoral campaign. In that context, the four principles of QUAD were quite specific on certain points, in particular in favouring a family social policy that would involve structuring supply rather than demand, to the displeasure of such provincial governments as Alberta and New Brunswick and an opposition party, like the Conservative Party of Canada, which had a preference for a restructuring of demand that would take the shape of support for families’ purchasing power.37 Indeed, this explains why negotiations with New Brunswick dragged out. Negotiations with Quebec, however, remained delicate for other rea-

Social Economy, Social Policy, and Federalism in Canada  349

sons, which we will merely touch on here. On the one hand, Quebec was the province where the early leaning and child care policy experiment that inspired the federal ELCC policy originated. On the other hand, the Charest government in power since 2003 was not the one that launched the Quebec daycare reform in 1997. While its stand continued that reform, the Charest government was working hard to alter some of its features, such as the emphasis on a management method favouring the social economy formula. So the federal government knew that the Charest government needed federal joint funding to share the burden of $1.4 billion in public funds devoted annually to the Quebec program of daycare services. But it also knew that Quebec, under the provincial Liberals as under the Parti Québécois, was likely to be intractable as regards negotiating conditions imposed by the federal government in an area of provincial jurisdiction. This series of elements raised once again the touchy issue of asymmetry, a term Prime Minister Martin was heard occasionally to mutter, sotto voce, because he knew full well that too much asymmetry granted to Quebec would be liable quickly to become an unacceptable irritant in the eyes of other provinces. Despite all these pitfalls, a ‘final agreement’ on funding was signed between Quebec and Canada on 28 October 2005. Without being able to analyse it here, we would point out that, in the speech he gave in Montreal to announce this agreement, Minister Dryden made some astonishing statements. In fact, expressing himself in terms likely to ruffle the feathers of the Charest government, the federal minister praised the policy developed some eight years previously by the Parti Québécois government. Then, after describing this policy, Dryden went on to praise it further: ‘That represented a significant advance because, until that time, no province or territory was ready or willing to show us, or capable of showing us, what an ambitious early childhood system could look like.’ He went on to add that this system was a success and that Quebec’s actions had been a powerful inspiration. He ended his speech by pointing to ‘Quebec’s leadership on early learning and child care’ in Canada.38 As to the contribution of the social economy to the Quebec ‘success story,’ though, he remained non-committal. Conclusion In this chapter, we wanted to look at the interfaces among the social economy, social policy, and Canadian federalism over the decade 1995– 2005. To that end, we adopted from the outset some conclusions from

350 Yves Vaillancourt and Luc Thériault

a review of the international literature on the third sector that draw attention to the coexistence of two research traditions. In identifying these two traditions, we sought less to oppose them to one another than to take a stance theoretically and practically in favour of their complementarity. That prompted us, in the first section of the text, to indicate our preference for a broad, inclusive definition of the social economy that makes room for non-market components (e.g., publicly subsidized community organizations that provide their services free of charge), as much as for market components (e.g., daycare centres that ask parents to pay $7 a day per child). In the second section of the chapter, we proposed a comprehensive review of links among the social economy, social policy, and Canadian federalism over the decade 1995–2005, taking account of the distinction between the two traditions of the third sector and the two main components of the social economy defined inclusively, as explained in the first section. This review allowed us to draw attention to two periods that stand out from 1995 to 2005. During the twenty-six months when Paul Martin was at the helm of the federal government, that is, from the transition from Chrétien to Martin in December 2003 until the Martin government’s defeat at the polls on 23 January 2006, we can note significant changes in terms of interfaces among the social economy, social policy, and federal– ­provincial dynamics. Unlike his predecessor’s governments, Martin’s two governments expressed a strong interest in social economy initiatives, at least those coming under the market social economy. During the months prior to his coming to power, Martin had let it be understood that he intended to give some degree of priority to the social economy. Then, under his leadership, the social economy had an undeniable importance, and this had an impact in terms of public policy on both the social and the economic fronts. This means that the interfaces between social economy and social policy achieved clear visibility under the Martin governments. Paradoxically, the social policy portfolios most affected are not those in which the federal government intervened directly and that came under its own areas of jurisdiction (e.g., social policy concerning Aboriginal communities), but in fact, those in which it intervened indirectly through conditional grants to the provinces and territories and that belonged to areas outside its jurisdiction. That is why the issues of the interface between social economy and social policy during the Martin governments were sensitive areas on the federal–provincial relations

Social Economy, Social Policy, and Federalism in Canada  351

front. Thus, the interest in illustrating our analysis using the case of the early child care services portfolio examined in the third section of the chapter. The daycare services portfolio is worth taking a close look at during the period from 2003 to 2005, because it has represented a priority for the Quebec government under the Quebec Liberal Party since 2003, as it did under the PQ from 1996 to 2003, but also for the federal government during Paul Martin’s short reign. To begin with, the proposal for a ‘national program’ of early learning and child care (ELCC) services, involving a financial commitment of $5 billion over five years, had been given a great deal of publicity during the spring 2004 electoral campaign. This project, as both Prime Minister Martin and several members of his cabinet frequently stated, drew its inspiration from the innovative daycare centre reform driven in Quebec, since 1997, by Parti Québécois governments. This means that the social economy was a significant ingredient in the provincial example that inspired the Martin government, since preference was clearly given to non‑profit daycare centres, with regard to daycare centre management and service delivery, in the family policy launched by Minister Pauline Marois back in 1997. But in Martin’s national policy, the relationship to the social economy would not be explicitly assumed; this does not mean that it was not implicitly recognized as being an important factor. In fact, the principle whereby the management and delivery of ELCC services come under the social economy or non‑profit organizations accredited by the provinces and territories would not be retained as one of the four principles of the acronym QUAD (Quality, Universally inclusive, Accessibility, and Developmental) retained following federal–provincial–territorial negotiations conducted in early November 2004. These four principles, while not incorporating the principle of the social economy, represented requirements that were restrictive for certain conservative provinces. In fact, such provinces as Alberta and New Brunswick would have liked to use federal subsidies without being required to develop family social policy going in the direction of restructuring the supply of ELCC services. Their vision led them instead to prefer structuring demand, in the name of parents’ freedom of choice. This conservative vision corresponds to that of the Conservative government headed by Stephen Harper, who shortly after he took power in February 2006, announced his intention of implementing his promise to structure demand by offering an allowance of $1,200 per child

352 Yves Vaillancourt and Luc Thériault

aged under 6 effective 1 July 2006. He also announced his intention to honour, until 31 March 2007, the funding agreements signed with only three provinces, that is, until the end of the second year of those agreements. This meant he would be cancelling the provisions of the agreements concerning the final three years, and this would mean a funding shortfall of more than $800 million for Quebec. When one takes stock of the unfinished implementation of Paul Martin’s national ELCC policy in the wake of the January 2006 election, one may wonder how to explain what happened. Why was Martin’s policy not realized? On the one hand, one can respond that the very fact of forming a minority rather than a majority government limited Martin’s freedom of movement during the period between spring 2004 and January 2006. Certainly, such an explanation has some truth to it. On the other hand, though, one can emphasize the fact that the Martin government aimed to develop a ‘national system,’ that is, a pan‑Canadian system, in an area of provincial jurisdiction. This placed the government on a tightrope and exposed it to some tricky pitfalls on the federal–provincial relations front because the federal discourse concerning the single national system, in this public policy field, had to be reconciled one way or another with the initiatives of thirteen different provincial and territorial governments so as to build thirteen different ELCC systems. Clearly, the thirteen provinces and territories were interested in receiving federal funding. But the conditions for federal subsidies that suited some parties did not always suit the others. Quebec, for well-known sociopolitical reasons, wanted no conditions, even though its own innovative program had inspired the national program and even a good part of the four principles or conditions established in the agreements in principle. Provinces such as Manitoba and Saskatchewan, with their social democratic governments and their traditional affection for costsharing programs, had no problem with the four principles of QUAD and could even have gone along with a fifth condition stipulating that management was to come under the social economy. Other provinces, such as Alberta and New Brunswick, along with the Conservative Party of Canada headed by Stephen Harper, did not like what they perceived as the excessively restrictive nature of QUAD insofar as the program presupposed that the provinces receiving federal money would have to commit themselves, one way or another, in favour of the development of daycare places for young children aged under 6 in their provinces. Alberta and New Brunswick signed an agreement in principle like the

Social Economy, Social Policy, and Federalism in Canada  353

others, but only after insisting on the insertion of wording indicating that daycare services developed in their provinces could come under commercial daycare centres. When all is said and done, how can one talk of a national early learning and child care (ELCC) program whose Quebec source of inspiration involves heavy use of the social economy, while respecting the jurisdiction of thirteen provincial and territorial governments in an area of intervention that comes under their responsibility first? With the advent of the Harper government in Ottawa, a new chapter in the story is now beginning. The very idea of a national early learning and child care policy becomes obsolete for the new government, and if federal–provincial relations are likely to assume a new hue, this will probably be generated by other portfolios, not early child care. Notes   1 K. Battle and S. Torjman, Architecture for National Child Care (Ottawa: Caledon Institute of Social Policy [CISP], 2002); Jane Jenson, ‘Components of a Social Architecture for the New Century,’ presentation made to the ‘New Century, New Risks’ conference held at McGill University, Montreal, 18–19 Nov. 2004.   2 We have borrowed the concept of État stratège from L. Côté, B. Lévesque, and G. Morneau, ‘Les conditions gagnantes pour un changement en profondeur: Une vision partagée, une gouvernance appropriée et un État stratège,’ Le Devoir (8 Nov. 2005), A7.   3 Yves Vaillancourt, ‘The Quebec Model in Social Policy and Its Interface with Canada’s Social Union,’ in Sarah Fortin, Alain Noël, and France StHilaire, eds., Forging the Canadian Social Union: SUFA and Beyond (Montreal: Institute for Research on Public Policy [IRPP], 2003), 157–95.   4 Adalbert Evers and Jean-Louis Laville, eds., The Third Sector in Europe (Cheltenham: Edward Elgar, 2004).   5 Lester M. Salamon, Helmut K. Anheier, eds., The Emerging Nonprofit Sector: An Overview (Manchester: Manchester University Press, 1996).   6 Virginia Hodgkinson and Anne Painter, ‘Third Sector Research in International Perspective: The Role of ISTR,’ Voluntas: International Journal of Voluntary and Nonprofit Organi­zations 14/1 (2003), 4–5.   7 Yves Vaillancourt, ‘Bridging Social Economy and Third Sector,’ Inside ISTR 12/3 (2004): 5.   8 Yves Vaillancourt, ‘Le tiers secteur au Canada, un lieu de rencontre entre la

354 Yves Vaillancourt and Luc Thériault tradition américaine et la tradition européenne,’ Canadian Review of Social Policy, no. 56 (2006), 23–39.   9 Christian Jetté, Benoît Lévesque, Lucie Mager, and Yves Vaillancourt, Éco­ nomie sociale et transformation de l’État-providence dans le domaine de la santé et du bien-être: une recension des écrits (1990–2000) (Quebec: Les presses de l’Université du Québec, 2000), 53–7. 10 Benoît Lévesque and Margie Mendell, ‘L’économie sociale au Québec: éléments théoriques et empiriques pour le débat et la recherche,’ Lien social et Politiques, no. 41 (Fall 1999), 110–20; Yves Vaillancourt, François Aubry and Christian Jetté, eds., L’économie sociale dans les services à domicile (Quebec: Les presses de l’Université du Québec, 2003), 73–81. 11 Chantier de l’économie sociale, Osons la solidarité, Rapport du groupe de travail sur l’économie sociale, Montreal, Chantier de l’économie sociale, October 1996. 12 Yves Vaillancourt, François Aubry, Muriel Kearney, Luc Thériault, and Louise Tremblay, ‘The Contribu­tion of the Social Economy towards Healthy Social Policy Reforms in Canada’ in Dennis Raphaël, ed., Social Determinants of Health (Toronto: Canadian Scholars’ Press, 2004), 314–17; Muriel Kearney, François Aubry, Luc Tremblay and Yves Vaillancourt, L’écono­mie sociale au Québec: le regard d’acteurs sociaux, Cahiers du LAREPPS, no. 04-25 (Montreal: UQAM-LAREPPS, 2004). 13 Yves Vaillancourt and Jean-Louis Laville, ‘Les rapports entre associations et État: un enjeu politique,’ Revue du MAUSS, no. 11 (1998), 119–35; Gérald Larose, Yves Vaillancourt, Geneviève Shields, and Muriel Kearney, ‘Contributions of the Social Economy to the Renewal of Policies and Practices in the Area of Welfare to Work in Quebec during the Years 1983–2003,’ Canadian Journal of Career Development 4/1 (2005), 11–28. 14 Jack Quarter, Canada’s Social Economy: Co-operatives, Non-profits, and Other Community Enterprises (Toronto: Lorimer, 1992). 15 See the VSI Website (http://www.vsi-isbc.ca). 16 Michael H. Hall, Cathy W. Barr, M. Easwaramoorthy, S. Wojciech Sololowski, and Lester M. Salamon, The Canadian Nonprofit and Voluntary Sector in Comparative Perspective (Baltimore and Toronto: Johns Hopkins University Press and Imagine Canada, 2005). 17 Keith G. Banting, The Nonprofit Sector in Canada: Roles and Relationships (Montreal and Kingston: McGill-Queen’s University Press, 2000); Kathy L. Brock and Keith G. Banting, eds., The Nonprofit Sector and Government in a New Century (Montreal and Kingston: McGill-Queen’s University Press, 2001); Thomas J. Courchene, A State of Minds: Toward a Human Capital Future for Canadians (Montreal: IRPP, 2001), 111–20; Kathy L. Brock, ed.,

Social Economy, Social Policy, and Federalism in Canada  355 Improving Connections between Governments and Nonprofit and Voluntary Organiza­tions (Montreal and Kingston: McGill-Queen’s University Press, 2002); Susan D. Phillips, with assistance from Havi Echenberg and Rachel Laforest, A Federal Government – Voluntary Sector Accord: Implications for Canada’s Voluntary Sector (Ottawa: Voluntary Sector Initiative, 2001); Susan D. Phillips, ‘SUFA and Citizen Engagement: Fake or Genuine Masterpiece?,’ in Fortin et al., Forging the Canadian Social Union, 93–124. 18 Federal-Provincial-Territorial Ministers Responsible for Social Services, IN UNISON: A Canadian Approach to Disability Issues, vision paper (Ottawa: Authors, 1998), 24; David Cameron and Fraser Valentine, eds., Disability and Federalism: Comparing Different Approaches to Full Participation (Montreal and Kingston: McGill-Queen’s University Press, 2001); Alan Puttee, ed., Federalism, Democracy and Disability Policy in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2002). 19 Yves Vaillancourt and Luc Tremblay, eds., Social Economy: Health and Welfare in Four Canadian Provinces (Montreal and Halifax: LAREPPS/Fernwood, 2002). 20 Michel Audet, ‘Speaking Notes for the Opening Ceremonies of the National Community Economic Development Conference,’ Hôtel Delta, TroisRivières, 19 May 2004. 21 We feel it is important to make a clear distinction between the two Martin governments. The first was a majority government that held power for seven months, from December 2003 to June 2004; the second, following the June 2004 election, was a minority government that held power for nineteen months, from June 2004 to late January 2006. 22 Paul Martin, Address by the Prime Minister in Reply to the Speech from the Throne (3 Feb. 2004, Ottawa). 23 Eleni Bakopanos, ‘Speaking Notes,’ Luncheon remarks on the second day of the conference ‘New Century, New Risks,’ Montreal, 19 Nov. 2004, 3. 24 Ken Dryden, ‘Notes d’allocution devant le Comité permanent du développement des res­sources humaines, du développement des compétences, du développement social et de la condition des personnes handicapées (Speaking Notes before the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities), House of Commons, Ottawa, 3 Nov. 2004, 6 (Mr Dryden’s English speaking notes are no longer available on the Department of Human Resources and Social Development Canada Website, therefore we have provided our own translation. 25 Ibid., 5. 26 Vaillancourt and Tremblay, eds., Social Economy, 39–40; Evelyn B. Fergu-

356 Yves Vaillancourt and Luc Thériault son and Susan L. Prentice, ‘Consumer Involvement and Control in Child Day Care: A Legislative Analysis,’ Canadian Review of Social Policy, no. 47 (Spring 2001): 45–58; Marcel Lauzière, ‘Child Care for a Change!’ Perception 27/1&2 (2004): 1–3. 27 See Vaillancourt and Tremblay, Social Economy, 37–42. Canadian Policy Research Networks Inc. (CPRN), Final Report: Child Care Policy Conference (Ottawa: CPRN, 2002), 11. 28 Vaillancourt et al., ‘Contribution of the Social Economy, 318–21. 29 Rianne Mahon, ‘Early Child Learning and Care in Canada: Who Rules? Who Should Rule?’ Discussion paper prepared for the Canadian Council on Social Development’s national conference on child care in Canada, ‘Child Care for a Change!’ Winnipeg, 12–14 Nov. 2004), 9–10. 30 Martin, Address by the Prime Minister (3 Feb. 2004), 13. 31 Canada and Quebec, Funding Agreement (28 Oct. 2005). Canada-Quebec Agreement on Early Learning and Child Care, 2. 32 Ken Dryden, Response to Speech from the Throne: What Is the Canada that Is Reflected in this Speech from the Throne? Available at http://www.kendryden.parl.gc.ca/pub_details.asp?lang=en&pubID=742, accessed on 7 Sept. 2006. 33 Ken Dryden, ‘Speaking Notes for the Honourable Ken Dryden, Minister of Social Development, at the Canadian Council on Social Development’s National Early Learning and Child Care Conference entitled ‘Child Care for a Change!’ Winnipeg, 12–14 Nov. 2004, 8. 34 Gordon Cleveland and Michael Krashinsky, ‘Financing Early Learning and Child Care in Canada,’ Discussion paper prepared for the Canadian Council on Social Development’s national conference on child care in Canada, ‘Child Care for a Change!’ Winnipeg, 12–14 Nov. 2004. 35 Ken Dryden, ‘Notes pour l’allocution de Ken Dryden, ministre du Déve­ loppement social, à l’occasion de la signature d’un accord de principe sur l’apprentissage et la garde des jeunes enfants (Speaking Notes for Ken Dryden, Minister of Social Development, on the Signing of an Agreement in Principle Concerning Early Learning and Child Care), Fredericton, 24 Nov. 2005, 2. (Mr Dryden’s English speaking notes are no longer available on the Department of Human Resources and Social Development Canada Website, therefore we have provided our own translation.) 36 Ibid., 2. 37 See Luc Thériault, ‘The National Post and the Nanny State: Framing the Child Care Debate in Canada,’ Canadian Review of Social Policy, no. 56 (2006), 140–8. 38 Ken Dryden, ‘Notes d’allocution pour Ken Dryden, ministre du Dévelop-

Social Economy, Social Policy, and Federalism in Canada  357 pement social à la signature d’un accord sur l’apprentissage et la garde des jeunes enfants (Speaking Notes for Ken Dryden, Minister of Social Development, on the Signing of an Agreement Concerning Early Learning and Child Care),’ Montreal, 28 Oct. 2005, 1-2. (Mr Dryden’s English speaking notes are no longer available on the Department of Human Resources and Social Development Canada Website, therefore we have provided our own translation.)

13 Cities within the Canadian Intergovernmental System1 luc turgeon

Canadian cities have long been ignored by specialists of Canadian federalism. Indeed, the role of the city within the Canadian federation has been absent in the majority of works on Canadian intergovernmental relations.2 These omissions are nonetheless understandable given the limited economic and political resources available to municipal governments. Unlike many of their European and U.S. counterparts, Canadian cities are without any real ‘extra-local’ political power and are truly creatures of the provinces. Lacking the power of influence of the French city, the Scandinavian city’s stake in welfare state governance, and the U.S. city’s role in economic development, Canadian cities have been, without a doubt, the outcasts of Canadian federalism. Nonetheless, Canadian cities are now at the forefront of the national policy agenda.3 The lobbying efforts of the mayors of major Canadian cities for a ‘new deal’ coupled with the federal government’s desire to develop a coherent urban development strategy suggests that cities or the ‘urban question’ will be at the centre of intergovernmental relations in the years to come. This chapter attempts to answer two relatively simple questions. First, how does one explain the re-emergence of the urban issue in intergovernmental relations following the failure of the urban development strategy adopted by the federal government in the 1970s? Second, how has the intergovernmental context, with respect to municipal issues, changed since the most recent wave of urban legislation, and how will these changes influence the nature of urban governance in Canada? The first section of this chapter examines the status of the city within the Canadian Constitution and the history of Canadian federal–provincial–municipal relations. This section seeks to demonstrate that, taking

Cities within the Canadian System  359

into consideration the importance of the federal spending power, the role of cities in intergovernmental relations is a political rather than a constitutional issue. The second section explores the return of the urban question to the forefront of the national policy agenda, specifically, (1) the rise of political coalitions, especially outside of Quebec, advocating reform at the municipal level, and (2) the ongoing transition, at the national level, of the neo-liberal state towards a social investment state. This transition is of particular importance in explaining the desire expressed by the federal government to play a growing role in urban development. The final section of this chapter explores the transformation of intergovernmental relations since the 1970s and its impact on the governing of Canadian cities. Cities and the Canadian Constitution Cities and Intergovernmental Relations: ‘Hyper-fractionalized, Quasi-subordination’ The Constitution Act, 1867, clearly defines provincial primacy in municipal affairs. Section 92(8) states that ‘in each Province the Legislature may exclusively make Laws in relation to […] Municipal Institutions in the Province.’ From this perspective cities are, in essence, creatures of the provinces. It is important to note that U.S. cities, in spite of the Dillon ruling confirming their status as creatures of the states,4 have nonetheless played a more prominent role in American intergovernmental relations than Canadian cities have in their respective system. Whereas many U.S. cities are governed by municipal charters that provide them with a certain degree of local autonomy in fiscal matters and in public policy, Canadian cities operate for the most part under municipal laws that limit their scope of intervention and impinge on their capacity to generate revenue. Furthermore, as noted by Sancton, Canadian federalism is interpreted as a pact between the federal government and the provinces, whereas American federalism is conceptualized as ‘a partnership between the federal government on the one hand and state and local governments on the other.’5 The Canadian Constitution, provincial laws, and Canadian political culture all play an equal part in limiting municipal authorities’ autonomy and their capacity to be central actors at the core of the Canadian intergovernmental system. In a now-classic work, Stefan Dupré uses the expression ‘hyper-fractionalized quasi-subordination’ to describe the intergovernmental rela-

360 Luc Turgeon

tionship between Canadian cities and provinces.6 According to Dupré, three primary factors distinguish federal–provincial relations from provincial–municipal relations. First, whereas the relationship between the federal government and the provinces is constitutionally enshrined, the relationship between cities and the provinces rests on statutory laws that are easily amendable. Second, the relationship between the federal government and the provinces is one between equals, whereas the relationship between cities and the provincial governments is one of subordinates and superiors. These first two aspects correspond to what Dupré describes as the cities’ ‘quasi-subordination’ to the provinces. The term ‘quasi’ alludes to the fact that there are limits to the cities’ subordination. Local representatives are democratically elected and thus speak on behalf of a local will that cannot be ignored. It is important to note that, within the realm of intergovernmental relations, the quasi-subordinate role of cities was reinforced in Quebec during the 1970s with the adoption of Article 3(11) of the act respecting the Ministère du Conseil Exécutif. The article stipulates that ‘no municipal body or school body may, without the prior authorization of the Government, enter into any agreement with another government in Canada or one of its departments or government agencies, or with a federal public agency.’ The adoption of this article represented a direct reaction to the desire expressed by the federal government, in the 1970s, to play a more active role in urban affairs. ‘Hyper-fractionalized’ refers to the differing degrees of complexity that separate federal–provincial relations from provincial–municipal relations. Where federal–provincial relations are relatively simple, with one federal government and ten provinces, the presence of a multiplicity of municipal representatives renders provincial–municipal relations far more complex. According to Caroline Andrew, ‘the hyper-fractionalized nature of the relationship refers to the fact that, both at the provincial and at the municipal level of government, there are a multiplicity of bodies involved in provincial-municipal relations. The department of municipal affairs in each province is only one of the provincial players and often coordination among the various provincial agencies is relatively limited.’7 The Canadian Constitution thus prevents cities from playing a principal role in intergovernmental relations. Furthermore, it limits the possibility of establishing a system of direct federal–municipal relations similar to the ones found in the United States and in most European

Cities within the Canadian System  361

countries, notably Germany and Great Britain. Nonetheless, this does not imply that the federal government has not attempted to or is incapable of playing an important role in the development of Canadian cities. The Federal Government and Urban Development Unlike the United States and most European countries, following the Second World War, Canada failed to develop a formal partnership with its cities. However, one notable exception remains an attempt by the Trudeau government, following the creation of the federal Ministry of State for Urban Affairs (MSUA), to implement a pan-Canadian strategy for urban development. Established in 1971, the ministry had as its primary objectives to coordinate the activities of the federal government relating to urban development and to facilitate the interaction between the different levels of government.8 Failing to coordinate the efforts of the different ministries, MSUA attempted to facilitate greater intergovernmental coordination via the organization of trilateral summits where the municipalities held an official position. Nonetheless, after two conferences, the provinces, led by Ontario and Quebec, refused to continue. Without any real support from within the federal government and constantly questioned by the provinces, the ministry was abolished in 1979. According to Andrew, ‘the Department of Finance was convinced that the Ministry had not been successful and certainly the federal constitutional position seemed to be that if the federal government were to insist that the provinces respect federal jurisdictions, the federal government should itself accept the provincial jurisdiction over municipal institutions to include broad questions of urban development.’9 The federal government has played an important role in urban development even though its capacity to establish direct links with municipalities has been, historically speaking, curtailed by the Canadian constitutional framework. The most convincing example of the federal government’s pivotal role remains the post–Second World War housing policies of the Canada Mortgage and Housing Corporation (CMHC) and their contribution to urban sprawl. Despite their crucial role in the development of cities, federal ministries and organizations have rarely adopted an explicitly urban frame of reference when designing their policies. Outside of the field of infrastructure, where the federal government

362 Luc Turgeon

has maintained a prominent presence, it is particularly within the social realm that it has attempted to influence the evolution of cities over the past few years. One example is the Supporting Communities Partnership Initiative (SCPI), enacted by the federal government in 1999, with the mission to combat homelessness in the ten largest cities in Canada. Under the SCPI, municipal governments are designated as ‘community entities’ and must develop a relief plan at the local level, select projects in tune with the initiative’s objectives, and subsequently, evaluate the success of the plan. However, the provinces must authorize the municipalities’ participation in the initiative. Another recent example is the partnership between the federal government, British Columbia, and the City of Vancouver for the socioeconomic revitalization of the Downtown Eastside, a neighbourhood ravaged by high levels of drug addiction and homelessness. The agreement gives the city a voice in how different federal and provincial programs are implemented and provides it with access to significant financial resources in order to revitalize this impoverished neighbourhood.According to Jane Jenson and Rianne Mahon, these initiatives ‘demonstrate that there is no firm constitutional inhibition, even within Canada, on the federal government having a direct relationship with municipal governments.’ As such, they argue that ‘whether the federal government is to be involved or excluded from new governance patterns will depend on political choices, not constitutional formalities.’10 The conclusions drawn here are descriptive and non-normative. Even though we recognize the federal government’s lack of constitutional foundation with regard to municipal institutions, we also recognize that the question concerning the role of the federal government in urban development will neither be decided in the judicial arena nor will it be defined by another round of federal–provincial negotiations. However, before exploring the actual dynamic of intergovernmental relations with regard to matters of urban development in greater detail, it is necessary to elaborate on the federal government’s increasing interest in this question. The Urban Question and the Federal Government’s Political Agenda According to John Kingdon, an issue appears at the forefront of the government’s agenda when a political opportunity allows for the linking of problems, solutions, and policy: ‘Policy entrepreneurs, people who are willing to invest their resources in pushing their pet proposals

Cities within the Canadian System  363

or problems, are responsible not only for prompting important people to pay attention, but also for coupling solutions to problems and for coupling both problems and solutions to politics.’11 This section illustrates how the urban question has reappeared on the intergovernmental relations agenda in Canada. It focuses on the rise of numerous urban problems, the creation of urban coalitions that advocate the renewal of intergovernmental relations, and finally, on the arrival of new opportunities for intervention, made possible by the federal government’s transition from a neo-liberal mode to a mode of socioeconomic investment. The Triple Deficit of Urban Development Despite their limited constitutional power, Canadian cities can no longer be ignored by the provinces and the federal government. Today more than 80 per cent of Canadians live in urban areas, and 64% live in regional municipalities of more than 100,000 inhabitants. The seven largest regional municipalities generate more than 45 per cent of Canada’s gross domestic product (GDP). Winnipeg accounts for 67 per cent of Manitoba’s GDP, Vancouver accounts for 53 per cent of British Columbia’s GDP and the metropolitan region of Montreal accounts for 49 per cent of Quebec’s GDP.12 Furthermore, an increasing number of specialists have shown that the quality of urban infrastructure, whether it relates to transportation, culture, education, or the environment, is essential to ensure a polity’s competitiveness in the age of globalization.13 Saskia Sassen fittingly notes that cities are the places where ‘the work of globalization gets done.’14 Despite their ever-increasing importance, Canadian cities suffer from a triple deficit that threatens their future. The first is a fiscal deficit. Whereas provincial and federal revenues have increased significantly over the past ten years, municipal revenues have not caught up with the increase in the inflation rate. In addition, federal and provincial transfer payments to municipalities – as a proportion of provincial revenues – have dropped by 44 per cent over the past ten years.15 A recent Organization for Economic Cooperation and Development (OECD) report on Canada commented on the extremely precarious financial situation of Canadian cities seemingly caused by their limited taxation authority and their dependence on revenues generated by the property tax.16 U.S. cities derive on average 21 per cent of their revenue from the property tax, compared with Canadian cities’ 49.5 per cent.17

364 Luc Turgeon

The fiscal deficit has greatly contributed to a second problem, an infrastructural deficit. This deficit is particularly troubling since urban infrastructure is, as previously mentioned, increasingly perceived to be essential factor in ensuring the competitiveness of cities. Despite the implementation of infrastructural programs such as the Canada Strategic Infrastructure Fund, the Municipal Rural Infrastructure Fund, and the Green Municipal Funds, it is estimated that the Canadian infrastructural deficit adds up to more than $60 billion.18 With respect to the aforementioned deficit, it must be noted that Canada is falling farther and farther behind its American neighbour. Whereas the Canadian federal government allocated $2 billion to different infrastructural programs in the year 2000, the Clinton Administration’s Livable Communities for the 21st Century initiative invested billions of dollars in transportation, the environment, and housing in urban areas. The initiative’s most important program, the Transportation Equity Act-21 (TEA-21), disposed of a six-year, $217 billion budget, to develop solutions to questions of traffic in urban areas and the environmental problems that the latter causes.19 Finally, and equally disconcerting, is the increasing social deficit. A considerable number of studies have shown an increase in the poverty level in Canada since the 1970s, particularly in large metropolitan zones. Kevin Lee’s study on social development in Canada indicates that, between 1990 and 1995, the poverty level increased by 33.8 per cent in the metropolitan regions covered by the census, whereas it increased by 18.2 per cent in non-metropolitan regions.20 Additionally, not only is this poverty increasingly concentrated in metropolitan regions, it is also strongest in the more destitute neighbourhoods. In these cases, poverty becomes a multidimensional and intergenerational reality. An equally troubling fact is that, despite Canada’s economic growth over the past ten years, the number of itinerants has continually increased. This is a direct result of the federal government’s withdrawal from the realm of social housing.21 It is therefore not surprising, given the degradation of the urban socioeconomic fabric, to witness the increasing mobilization of urban authorities, the business sector, and community groups towards a new pact for Canadian cities. Reform Coalitions at the Local Level During the past decade in Canada, particularly in Toronto, Vancouver, and Winnipeg, local coalitions were formed with the objective of

Cities within the Canadian System  365

mobilizing citizens behind a reform agenda. The agendas emanating from the cities were echoed by the renewed militancy of the Federation of Canadian Municipalities (FCM). These urban coalitions militate for political reforms that risk, if adopted, to dramatically change the dynamic of intergovernmental relations. The primary axis of reform proposed consists of increasing the autonomy of cities by adopting permissive rather than restrictive municipal charters.22 A particularly active movement has emerged in Toronto as a direct response to the municipal policies of the former Harris government, perceived by many to be antidemocratic and to have contributed to the city’s decline. The different proposals concerning the adoption of a municipal charter all highlight the incapacity of the City of Toronto to properly serve its citizens – given the limits imposed by municipal legislation and its limited sources of revenue – and the need to reform the relationship between the city and the Province of Ontario.23 British Columbia has led the charge in the reforming of municipal institutions in order to increase the autonomy of municipal authorities. The Community Charter Act adopted in 2002 renewed provincial–municipal relations by attenuating provincial paternalism vis-à-vis cities and by privileging consultative governance rather than governance by decree. Section 3 of the Charter highlights as its principal reform objectives autonomy, flexibility, and the augmentation of the functions and powers of cities. Local coalitions do not restrict their demands to the transformation of provincial–municipal relations. These coalitions are also supporting a greater degree of direct intervention of the federal government in matters of urban development and a larger role for municipalities in the realm of intergovernmental relations, particularly in areas that directly affect them, such as social housing. The City of Toronto and the different coalitions favouring reform have been at the forefront of this debate. Their militancy partly results from a noticeable lack of interest of the former Harris government in matters of urban development and partly from the fiscal and socioeconomic problems that resulted from the creation of the new City of Toronto. Members of Parliament from the region of Toronto, one of the most important contingents of the Liberal caucus, have been particularly active. MP Judith Sgro, who chaired the Liberal caucus’ special committee on urban development, as well as the former minister of state for infrastructure and communities, John Godfrey, both hail from Toronto. Equally important has been the renewed militancy of the Federation

366 Luc Turgeon

of Canadian Municipalities. During the 2004 federal election campaign, the FCM asked the competing political parties to commit to five important issues for cities: a new intergovernmental partnership where cities are represented and consulted; a new revenue-sharing agreement; investment in infrastructure; investment in community development; and a partnership seeking to develop a research agenda on sustainable development and quality of life in Canadian cities.24 Having recuperated the reform agenda first brought forth by Glen Murray, former mayor of Winnipeg, the FCM proposed concrete solutions to the federal government such as the transfer of a portion of the gasoline tax to the cities. The new coalitions supporting reform, with regard to intergovernmental relations, are in many respects much more powerful than the reform coalitions of the 1960s. Whereas urban movements in Toronto in the 1960s were largely dominated by members of the new middle class in reaction to the business sector’s development agenda, reform coalitions are now led by big business. As a case in point, the Toronto Dominion Bank has played an important role in matters of research on Canadian cities. Representatives of the private sector do not, however, focus exclusively on demands of an economic nature. In effect, the question of social housing occupies a prime position in demands made by the Toronto City Summit Alliance and the Toronto Board of Trade. Prior to the 2003 provincial elections and the 2004 federal election, the Toronto Board of Trade launched a massive campaign called Enough of Not Enough, which encouraged citizens to contact their local provincial and federal members of Parliament to demand a new agreement for the city of Toronto. The demands of these coalitions have significantly challenged the assumptions of Canadian federalism in matters of urban development and have served to weaken provincial primacy in this domain. The Federal Government’s Urban Development Agenda: Transition to the Social Investment State It came as no surprise that Paul Martin’s Liberal government expressed a noticeable desire to put cities back on the political agenda given, on the one hand, the central place of cities in Canadian socioeconomic reality and, on the other hand, the increasing mobilization of a city-oriented civil society. The current minority Conservative government faces the difficult task of developing a coherent urban agenda that can sway

Cities within the Canadian System  367

the large regional municipalities of Montreal, Toronto, and Vancouver, where the Liberal Party still has a dominant presence. The proposed new deal for cities, the creation of the position of minister of state of infrastructures, and the development of tripartite agreements on social questions demonstrates the federal government’s clear intention to play a proactive role in urban development. However, as John Kingdon’s model suggests, one needs more than the mobilization of political entrepreneurs to bring an issue to the forefront of the political agenda. What is of equal importance is that the agenda fall within, to quote the title of Leslie Pal’s book, ‘the interests of the state.’25 We believe that the importance of the urban agenda is generally to be found, to use Neil Brenner and Nick Theodore’s words, in the transition from a phase of destructive neo-liberal policies to a reconstructive phase.26 These authors point out that the 1980s and the first half of the 1990s experienced the destruction of the architecture of the post–Second World War progressive welfare state. Thus, according to Brenner and Theodore, who were themselves inspired by Schumpeter and the works of the Regulation school, the neo-liberal model has proven to be, in the mid-term, unstable and the effects of this instability have demonstrated themselves with greater prominence in urban areas. As previously illustrated, the long-term consequences of the orthodoxy of fighting against the deficit can only lead to a series of socioeconomic deficits. Such instabilities lead, in turn, to a second period of reweaving the socioeconomic fabric. The characteristics of the aforementioned transformation are, first, the desire to proactively renew the role of the state in socioeconomic development to ensure the competitiveness of Western society during the transition period towards a post-industrial economy and, second, to repair the social damage caused by the withdrawal of the state during the 1980s and 1990s. We acknowledge the paradox that it is indeed the struggle against the deficit that has led to the previously mentioned triple deficit (fiscal, economic, and social), which in turn, has made possible the federal government’s intervention in the field of urban development. We believe that it is from this perspective that one must conceptualize the rise of the third way in Great Britain and the support of the British business sector for measures of reinvestment in social and urban development. It is also with this conceptual lens that one must examine the renewal of urban policies in the United States. Denis Saint-Martin and Jane Jenson, following in the footsteps of Anthony Giddens, use the expression ‘social investment state’ to

368 Luc Turgeon

describe this new form of the Western state.27 The social investment state, which in many respects refers to the third way privileged by Tony Blair and Gordon Brown, is characterized by the increasing symbiosis of social, economic, and urban policies. Social and urban policies are seen as investments that contribute to economic prosperity over the long term by developing human capital. Former Canadian prime minister Jean Chrétien clearly states the primary objectives of the social investment state in a guidance document on Canadian innovation policy: ‘In the new, global knowledge economy of the twenty-first century prosperity depends on innovation, which, in turn, depends on the investments that we make in the creativity and talents of our people. We must invest not only in technology and innovation but also, in the Canadian way, to create an environment of inclusion, in which all Canadians can take advantage of their talents, their skills and their ideas; in which imagination, skills and innovative capacity combine for maximum effect.’28 The social investment state comprises three primary characteristics. First, its advocates employ pragmatic rather than ideological language. Gordon Brown, for example, when explaining his social and economic policies in Great Britain, often speaks of combining the best aspects of U.S. economic development with the best aspects of European social welfare. In this respect, the social investment state combines elements of Keynesianism and laissez-faire, on the one hand, investing greatly in the renewal of impoverished neighbourhoods, as in Great Britain and the United States and, on the other hand, encouraging contributions from the business sector and the development of public-private partnerships (PPPs). Second, the social investment state marks the return of a more interventionist government. Following years of struggle against the deficit, the central state initiates more and more new programs and allocates important resources to programs of urban and social development. Third, the social investment state is characterized by a shift in the operational geography of the central state. Since the social investment state operates at the intersection of different realms (economic, social, and urban) and attempts to limit direct intervention, its primary role is to ensure a certain degree of cooperation between different local socioeconomic actors. Thus its role focuses less on the transfer of state resources to individuals or on the development of quasi-corporatist mechanisms at the national level, and focuses more on facilitating coordination between local actors who are in a position to influence the repositioning of Canadian cities, the true instruments of economic

Cities within the Canadian System  369

development in the new economy. It is within this context that Henning Schridde affirms that the central state tries ‘increasingly to influence the forms and conditions of local cooperation and coordination processes by frame-setting, information and incentive programs.’29 The federal government’s initiatives in matters of innovation, its action plans to deal with homelessness and infrastructure renewal facilitating sustainable development, all share a common focus on the consolidation of local partnerships. This new state geography does not in itself signify the withdrawal of the federal government from municipal affairs. To the contrary, despite the cliché of the erosion of the nation-state, the federal government hopes to become one of the principal partners of local coalitions. As Nicola McEwen contends, where the decline of the welfare state contributed to the rise of nationalism in Quebec and Scotland, the new social investment agendas in Canada and Great Britain represent, for their part, a new wave of nation-building.30 Furthermore, the Sgro report on urban development in Canada did not disguise the federal government’s dual objectives of ‘community-building’ and ‘nation-building’: ‘The Task Force heard that the Government of Canada needs to better coordinate its programs and spending in urban areas, strengthen its relationships with partners in government and with community leaders, address cross-jurisdictional issues and international obligations, and enhance community and nation-building. Canadians are tiered of the constant bickering between orders of government and want to see their elected officials working together to meet their responsibilities.’31 The development of the Canadian social investment state and its application in the realm of urban development can only contribute to a new wave of federal–provincial diplomacy. In the following section, we compare the current intergovernmental relations context in Canada with the situation in the 1970s and we explore, in light of some of the federal government’s recent initiatives, possible scenarios concerning federal–provincial–municipal relations. Urban Development and Intergovernmental Relations: Exploring Potential Pathways The Transformation of the Intergovernmental Relations Context Four primary reasons can explain the failure of the federal strategy for urban development in the 1970s: (1) the provinces’ refusal to allow the federal government to meddle in what they believed to be their

370 Luc Turgeon

exclusive jurisdiction; (2) the federal government’s refusal to enter into a provincial–federal quarrel on the eve of Quebec’s first referendum; (3) Canadian cities’ amateurishness in matters of intergovernmental relations; and (4) the limited opening for civil society activism in the domain of intergovernmental relations.32 ‘Province-building’ is the term used by Alan Cairns to describe the militancy of provincial governments during the 1960s and 1970s.33 Even though talk of autonomy is still an important part of provincial rhetoric, particularly in Alberta, Quebec, and Ontario, Canadian provinces no longer have the option to refuse federal resources and intervention. The dual reality of the fight against debt and deficit and the fiscal imbalance is such that the provinces have very little manoeuvring room, whereas the federal government, buttressed by large surpluses, is capable of developing new programs and intervening in areas under provincial jurisdiction. As noted by Gerard Boismenu, Pascale Dufour, and Denis Saint-Martin, Paul Martin’s first cabinet had a secretary of state for cities, a minister of social development in charge of developing new pan-Canadian social policies, and a minister in charge of skill development (Skills Development Canada), which has links to the education sector.34 These are, in effect, three areas that fall under provincial jurisdiction. Thus it is of little surprise that urban reform coalitions and the mayors of the major Canadian cities turned to Ottawa in order to increase their revenue and to seek out new sources of investment for their infrastructures. As a result, obvious tension exists between the unwavering desire of certain provinces, such as Quebec, to maintain their jurisdiction in matters of municipal institutions and the provinces’ lack of resources. This situation is perfectly apparent in the ambiguous and contradictory rhetoric of the Charest government. In autumn 2003, Minister of Municipal Affairs Jean-Marc Fournier invited the federal government to invest in urban development and stated that Quebec’s provincial government should work to intensify federal–provincial–municipal cooperation. Furthermore, the Liberal government accepted to sign, unlike the preceding Parti Québécois government, an agreement with the Federation of Canadian Municipalities in order to gain access to the Municipal Green Fund.35 In this matter, the provincial government’s role was limited to advancing projects for which the eventual funding would be decided on by an administrative council without any provincial representation and where the federal government occupied a third of the seats. Despite the implicit acceptance of the feder-

Cities within the Canadian System  371

al government’s power to intervene in municipal affairs, Minister of Intergovernmental Affairs Benoît Pelletier, subsequently stated that the questioning of Quebec’s jurisdiction in municipal matters would be met by a strong challenge from the Charest government and that ‘the government of Quebec will make it clear that, in this matter, it is the only interlocutor Ottawa need concern itself with.’ Among the Canadian provinces – Quebec aside – and particularly in Ontario following the ascension to power of Dalton McGuinty’s Liberal government, such reservations are less and less prominent. Rather, the provinces associate themselves more frequently with cities to facilitate federal government intervention. A second important change constitutes the desire of Canadian cities to play a more important role in the realm of intergovernmental relations. According to Ken Cameron, one of the principal obstacles to the development of federal–provincial–municipal relations during the 1970s included the lack of resources available to municipal authorities for intergovernmental matters, infighting in the Federation of Canadian Municipalities, and finally, the perception that the fragmentation of the greater metropolitan regions in Canada prevented them from forming a united front.36 Over the past few years, many changes have allowed cities to play an important role in the realm of intergovernmental affairs. First, according to Cameron, several Canadian cities have established institutional structures specifically dedicated to the ‘intergovernmental question.’ Second, the FCM seems to have settled the conflict between big cities and rural areas that often limited its capacity to act and mobilize, and created several subcommittees dedicated to specific areas of concern, such as the fate of the major Canadian cities. The FCM has also developed a highly effective research wing that is now in a position to advance concrete proposals. Although it is too early to arrive at any definitive conclusions, we hypothesize that the creation of new megacities in Quebec and Ontario, bearing in mind the number of citizens that they represent, will only reinforce their position in the intergovernmental arena. This seems to be the case for Toronto where, as previously mentioned, one observes a mobilization and an unprecedented ‘affirmationist’ rhetoric. In the post–Charlottetown Accord era of intergovernmental relations, where the federal government emphasizes the importance of consulting with civil society, the mobilization of urban reform coalitions, particularly outside of Quebec, can serve only to reinforce the status of Canadian cities.

372 Luc Turgeon

Four Possible Scenarios Concerning Urban Development and Intergovernmental Relations It is difficult to determine the impact of some of the changes mentioned in the preceding section, given how recent they are, on the evolution of intergovernmental relations in matters of urban development. However, in light of certain recent initiatives, we now present four different non-mutually exclusive scenarios regarding the possible evolution of federal–provincial–municipal relations. Scenario 1: Multi-level Governance The most optimistic scenario comprises enacting real partnerships between the three levels of government and joining their mutual resources in order to solve specific urban problems. Such partnerships have already been adopted, notably following the creation of Montreal International and, to a certain extent, the agreement on infrastructures reached during the first Chrétien government. The prototype par excellence of multi-level governance, seemingly favoured by the Canadian social investment state, is the Vancouver Agreement. It was signed in 2000 by the federal government, British Columbia’s provincial government, and the City of Vancouver, following a series of consultations with civil society representatives active in the revitalization of Downtown Eastside. The agreement is supervised by a steering committee, which includes a federal minister, a provincial minister, and the mayor of Vancouver, and is enforced by a management committee of three high-ranking public servants respectively drawn from each level of government. The agreement foresees resource sharing, both human and economic, between the three levels of government in the domains of health care, community security, and economic and social development.37 The agreement increases the presence of municipal and civil society representatives incrementally and allows federal and provincial public servants to adapt their respective programs to the real needs of Downtown Eastside residents. The Four Pillars Drug Strategy, the primary program enacted following the signing of the agreement, has led to the opening of the first safe-injection sites in North America. The Vancouver Agreement and those signed in Winnipeg and Regina have put municipal authorities on an equal footing with the other rungs of government and have institutionalized mechanisms of consultation to limit possible arbitrary actions by another level of government.

Cities within the Canadian System  373

Scenario 2: The Americanization of Canadian Federalism On the opposite end of the spectrum one finds the Municipal Green Funds, which are indicative of a degree of Americanization of Canadian federalism. As is the case with urban policies in the United States, Municipal Green Funds represent an attempt by the federal government to institute, with its spending power and the creation of an independent agency charged with managing federal funds, a direct relationship with the cities, effectively bypassing the provinces. In this model, municipal representatives have a direct relationship with federal representatives and the province’s role, as is in Quebec, is limited to relaying the cities’ funding requests. The final say, however, comes from a council essentially comprised of representatives from the federal government and the municipalities. In this scenario the federal government also attempts, as evidenced by anti-homelessness programs, to fund local partnerships rather than fund municipal governments directly and makes local agencies responsible for the management and redistribution of federal monies. However, in most cases, the municipal government is the principal agency in charge of developing local plans of action. Nonetheless, it must be noted that in the two aforementioned examples, the federal government had signed agreements ex ante with provincial authorities authorizing their direct contact with the municipalities. In the long run, these programs increase the federal government’s presence in urban development and limit the role of the provincial government to that of an observer rather than equal partner. It is important to note that it is through such programs that the U.S. federal government has increased its role in urban development since 1960. In this model, the provinces are relegated to a lobbying role to ensure a fair distribution of resources and the financing of projects deemed to be priorities.38 Scenario 3: The Reinforcement of Asymmetrical Federalism Despite the federal government’s apparent interest in playing a more proactive role in municipal affairs and civil society’s desire in playing an equally important role in most Canadian provinces, the situation in Quebec still remains problematic. Certain new agreements concerning urban development allow for a degree of asymmetry in the working of federal programs and have often been the subject of separate Quebec–Canada accords. In Quebec, unlike in other provinces and territo-

374 Luc Turgeon

ries, the Supporting Communities Partnership Initiative (SCPI) and the Regional Homelessness Fund (RHF) are delivered under a formal Canada–Quebec agreement, in collaboration with the Province of Quebec. Even though Paul Martin’s Liberal government expressed a degree of support for asymmetrical federalism in signing the 2004 Health Accord, negative reactions in English Canada to this form of federalism could hurt the future prospects for an agreement explicitly recognizing Quebec’s distinct status. Fittingly, a few weeks after the signing of the accord, John Godfrey took a hard-line stance, stating that for a new infrastructure project ‘the provinces will have to commit to national objectives set by Ottawa with regards to sustainable development.’39 It is still too early to determine whether the Harper government’s open federalism will lead to the enacting of distinct agreements with Quebec. Regardless, it would seem that the rhetoric of provincial equality promulgated by several Conservative MPs is incongruent with the ideas of asymmetrical federalism. Scenario 4: Failing Anew? The final scenario to be considered is the federal government failing in its attempt to develop a pan-Canadian agenda in urban development. Several factors present a real threat to the development of true ‘national’ programs. First, there has been a shift in rhetoric from municipal development to community development. Some contend that this shift involves more than a simple change in wording and that it effectively exposes the federal government’s recognition of the difficulty in developing a real urban agenda. This difficulty is the result of prohibitive constitutional constraints and an electoral system that privileges rural areas, thus making a city-oriented political agenda difficult to adopt. In an article published in the Toronto Star, Glen Murray, whom many deem to be the godfather of the new deal for cities, appeared pessimistic about the possibility of the renewal of Canadian intergovernmental relations.40 Murray deplored the fact that the federal Liberal government’s urban agenda limited its scope to the infrastructure question and to a modest transfer of gasoline tax revenue to the municipalities. For Murray, the greatest failure of the campaign for a new deal for cities has been the provincial governments’ refusal to enlarge the number of revenue-generating tools available to Canada’s major cities. Thus, just as in the 1970s, it is likely that the urban agenda engenders many guidance documents and scholarly papers, yet produces but few

Cities within the Canadian System  375

concrete results. Furthermore, Stephen Harper’s Conservative government, despite its commitment to pursue the outgoing government’s infrastructural initiatives, lacks the Liberal Party’s enthusiasm for a pan-Canadian strategy for urban development. Conclusion We have attempted to demonstrate that the urban question – despite the possible failure of the federal government’s urban development strategy and considering the transition towards a social investment state – will be at the centre of the intergovernmental relations’ discourse over the next few years. The federal government’s new socioeconomic strategy, based on the concepts of innovation, human and social capital, and infrastructural investment, has as its primary objective the transformation of the socioeconomic fabric of Canadian cities. This is not a uniquely Canadian reality. Several European countries, as well as the United States, have adopted over the past few years innovative programs in order to confront the problems linked to the social exclusion and infrastructural decay of urban areas. Political actors can no longer use the same approach as twenty years ago. If Canadian cities were once seen in the 1970s as thriving, this is certainly no longer the case. The competitiveness of the Canadian economy and the reduction of inequalities within the Canadian polity now depend greatly on socioeconomic policies that consider the specific needs of cities. Furthermore, despite the Conservative government’s promise to respect provincial jurisdiction, capturing the electoral support of major cities remains one of the conditions for securing majority government in Canada. It is thus in Stephen Harper’s best interests to sustain the urban development programs launched over the past few years. Notes   1 Translation by Arjun Tremblay.   2 Excluding Andrew Sancton’s ‘Municipalities, Cities and Globalization: Implications for Canadian Federalism,’ in Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness and Legitimacy (Don Mills: Oxford University Press, 2002), 261–77.   3 Caroline Andrew, Katherine Graham, and Susan Phillips, eds., Urban

376 Luc Turgeon Affairs: Back on the Policy Agenda, (Montreal and Kingston: McGill-Queens’ University Press, 2002).   4 In his ruling, Justice Dillon of the Iowa Supreme Court, affirmed that municipal corporations owe their origins and derive their powers and rights from the State Legislature, ‘They are … simply tenants at the mercy of the State Legislature.’ From Patrick J Smith and Kennedy Stewart, ‘Beavers and Cats Revisited: Creatures and Tenants vs. Municipal Charter(s) and Home Rule. Has the Local-Intergovernmental Game Shifted?’ paper presented at the Municipal-Federal-Provincial Conference, Queens University, Kingston, 9–10 May 2003.   5 Sancton, ‘Municipalities, Cities and Globalization,’ 263.   6 J. Stefan Dupré, Intergovernmental Finance in Ontario: A Provincial-Local Perspective (Toronto: Government of Ontario, Ontario Commission on Taxation, 1998). For a review of Dupré’s argument, see Caroline Andrew, ‘Provincial-Municipal Relations: Or Hyper-Fractionalized, Quasi-Subordination Revisited,’ in James Lightbody, ed., Canadian Metropolitics (Toronto: Copp Clark, 1995), 137–60; and Katherine A. Graham, Susan Philips, and Alan S. Maslove, Urban Governance in Canada (Toronto: Harcourt Brace, 1998).   7 Andrew, ‘Provincial-Municipal Relations,’ 137–8.   8 See the experience of the MSUA in Lionel Feldman and Katherine Graham, Bargaining for Cities (Toronto: Butterworths, 1979); and Elliot J. Feldman and Jerome Milch, ‘Coordination or Control? The Life and Death of the Ministry of Urban Affairs,’ in Lionel D. Feldman, ed., Politics and Government of Urban Canada (Toronto: Methuen, 1981), 246–64.   9 Caroline Andrew, ‘The Shame of (Ignoring) the Cities,’ Journal of Canadian Studies 35/4 (2000–01): 104–5. 10 Jane Jenson and Rianne McMahon, Bringing the Cities to the Table: Childcare and Intergovernmental Relations (Ottawa: Canadian Policy Research Network [CPRN], 2002), 26. 11 John W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd ed. (New York: Harper College, 1995), 20. 12 Prime Minister’s Caucus Task Force on Urban Issues, Canada’s Urban Strategy: A Vision for the 21st Century (Ottawa: Liberal Party of Canada, 2002), 1–2. 13 Richard Florida, The Rise of the Creative Class (New York: Basic Books, 2002); Richard Florida, Cities and the Creative Class (New York: Routledge, 2005). 14 Saskia Sassen, cited in Neil Bradford, Why Cities Matter: Policy Research Perspectives for Canada (Ottawa: CPRN, 2002), 5.

Cities within the Canadian System  377 15 Federation of Canadian Municipalities (FCM), Election 2004: Vers une Nouvelle entente, available at www.fcm.ca/newfcm/java/frameFR.htm, accessed on 19 Oct. 2004. 16 Organization for Economic Cooperation and Development (OECD), Territorial Review of Canada (Paris: OECD, 2002). 17 FCM, Election 2004. It is important to note that over the past few years, British Columbia, Alberta, Manitoba, Ontario, and Quebec have adopted fiscal arrangements that are advantageous for their municipalities. 18 Ibid. 19 TD Bank Financial Group, A Choice between Investing in Canada’s Cities or Disinvesting in Canada’s Future (Toronto: TD Bank, 2002), 11. 20 Kevin Lee, Urban Poverty in Canada: A Statistical Profile (Ottawa: Canadian Council on Economic Development, 2000), 8. 21 Jack Layton, Homelessness: The Making and Unmaking of a Crisis (Toronto: Penguin, 2000). 22 Most municipal charters in Canada have explicitly limited the areas in which cities can intervene. A permissive charter allows cities to intervene in all areas that are not explicitly excluded by the municipal charter. 23 Roger Keil and Douglas Young, ‘A Charter for the People? A Research Note on the Debate about Municipal Autonomy in Toronto,’ Urban Affairs Review 39/1 (2003): 87–102. 24 FCM, Election 2004. 25 Leslie Pal, The Interests of the State: The Politics of Language, Multiculturalism and Feminism in Canada (Montreal and Kingston: McGill-Queen’s University Press, 1993). 26 Neil Brenner and Nik Theodore, ‘Cities and the Geographies of Actually Existing Neoliberalism,’ Anitpode 34/3 (2002): 349–79. 27 See, Denis Saint-Martin, ‘De l’Etat-providence a l’Etat d’investissement social: un nouveau paradigme pour enfant-er l’economie du savoir,’ in Leslie A. Pal, ed., How Ottawa Spends 2000–2001 – Past Imperfect, Future Tense (Don Mills: Oxford University Press, 2000), 33–58; Jane Jenson and Denis Saint-Martin, ‘Building Blocks for a New Welfare State Architecture: From Ford to LEGO?’ paper presented at the annual American Political Science Association Conference, Boston, 29 Aug. to 1 Sept. 2002; and Anthony Giddens, The Third Way: A Renewal of Social Democracy (Cambridge: Polity Press, 1998). 28 Government of Canada, Knowledge Matters: Skills and Learning for Canadians (Ottawa: Human Resources and Development Canada, 2002), 2, available at http://www11.sdc.gc.ca/sl-ca/doc/report.shtml. 29 Henning Schridde, ‘Local Welfare Regimes and the Restructuring of the

378 Luc Turgeon Welfare State: An Anglo-German Comparison,’ German Policy Studies 2/1 (2002). Web version available on Expanded Academic ASA. 30 See Nicola McEwen, Nationalism and the State: Welfare and Identity in Scotland and Quebec (Brussels: Les Presses interuniversitaires européennes/ Peter Lang, 2005); Nicola McEwen, ‘State Welfare and the Impact of Welfare Retrenchment on the Constitutional Debate in Scotland,’ Regional and Federal Studies 12/1 (2002): 66–90. Also see Martin Papillon and Luc Turgeon ‘Nationalism’s Third Way? Comparing the Emergence of Citizenship Regimes in Quebec and Scotland,’ in Alain-G. Gagnon, Montserrat Guibernau, and François Rocher, eds., The Conditions of Diversity in Multinational Democracies (Montreal: Institute for Research on Public Policy [IRPP], 2003), 315–45. 31 Liberal Party of Canada. Prime Minister’s Caucus Task Force on Urban Issues, Canada’s Urban Strategy, 8. 32 Ken Cameron, ‘Some Puppets! Some Shoestrings! The Changing Intergovernmental Context,’ in Andrew et al., Urban Affairs, 303–8. 33 Alan C. Cairns, ‘The Governments and Societies of Canadian Federalism,’ Canadian Political Science Review 10/4 (1977): 695–725. 34 Gerard Boismenu, Pascale Dufour, and Denis Saint-Martin, Ambitions liberals et ecueils politiques: Realisation et promesses du gouvernement Charest (Montreal: Athena, 2004), 150. 35 Ibid,, 147–8. 36 See Cameron, ‘Some Puppets! Some Shoestrings!’ 2002. 37 Vancouver Agreement, 9 March 2000, available at www.vancouveragreement.ca. 38 For an overview on federalism and lobbying in the United States, see Anne Marie Cammisa, Governments as Interest Groups: Intergovernmental Lobbying and the Federal System (Westport: Praeger, 1995). 39 Jocelyn Richer, ‘Infrastrucutres municipales, Ottawa met des conditions,’ Presse Canadienne (26 Sept. 2004); our translation. 40 Glen Murray, ‘How Cities Lost the New Deal,’ Toronto Star (3 July 2005), A17.

PART FOUR Federalism and Management of Diversity

Today most modern states have to accommodate diversity, and their stability depends largely on their ability to translate this reality into institutions. Thus, new forms of federal, confederal, and even constitutional political association have appeared in order to reflect distinctive societal features. First, efforts to strengthen a feeling of citizenship have contributed to political debate in federal states. In Quebec, for example, a Quebec citizenship proposal made it possible to go from a sometimes ethnocentric vision to a multi-faceted, cross-cultural approach to the social and political situation. The quest for diversity and its institutionalization also results in greater awareness of Aboriginal claims, which have been ignored for too long by the federal and provincial governments. These issues do not concern Canada and Quebec alone, but also many other states. This is why it is so important to take a comparative approach to societies that comprise diversity. We will look at Spain in this context. Although it is not a federation, strictly speaking, it has all the underlying properties of federalism. Studying Spain reveals much about asymmetry, which is pertinent to Canada and Quebec. Linda Cardinal and Marie-Joie Brady argue, in Chapter 14, that Canadian citizenship and federalism are difficult to make compatible. First, they present the legislative and administrative framework of citizenship in Canada, which took form during the construction of nationality in the mid-twentieth century. They compare the concept of citizenship operating in Canada with that in Quebec, and find that they differ with regard to the importance they place on the individual’s duties with respect to the community. Then they present the kinds of primary discourses on which citizenship is based: nationalist, socialdemocrat, post-imperial and post-colonial. Cardinal and Brady show

380  Federalism and the Management of Diversity

how each of these discourses fits in with federalism and the ways of managing diversity that it entails. They thus show that the debate over citizenship has helped to change the terms of our understanding of the issues involved in recognizing diversity, and it has also renewed the related tensions. Canada is one example among others; since the tensions between citizenship and federalism are far from resolved, there is reason to believe that the compatibility problem will remain. In Chapter 15, Martin Papillon highlights how Canadian federalism is challenged by Aboriginal peoples’ political claims. While Canadian institutions may be fetters against which Aboriginal peoples struggle, the principle of federalism nonetheless provides a promising framework for responding to their claims. Papillon notes that current dynamics suggest that we are still far from veritable post-colonial federalism. Yet, some developments merit our attention, in particular interactions among Aboriginal, provincial, and federal governments with respect to defining and establishing public policy. Michael Burgess’s primary goal, in Chapter 16, is to draw readers’ attention to the nature of conflict and diversity in federal states. Burgess begins by portraying the new millennium as characterized by difference and diversity and as a world in which there are already trends and developments that could result in new forms of constitutional and political recognition of difference, diversity, and democratization. His conceptual analysis of diversity and conflict begins with a brief comparative study of what federal means, and this opens the way to an exploration of what sense to give to territoriality and power as conceptual categories in relation to managing diversity. This sheds refreshing new light on the relations between unity and diversity, and between diversity and federal states. Kenneth McRoberts ends Part 4, with Chapter 17, by placing Spain and Canada back to back in a highly focused study of the establishment of asymmetrical federalism as a sophisticated means of governance that could meet the expectations of citizens and national communities. McRoberts provides an in-depth analysis of the situations in Canada and Spain, and a convincing illustration that non-federal states, such as Spain, can be significant sources of innovation for Canada, where federal aspects are becoming less and less distinct.

14 Citizenship and Federalism in Canada: A Difficult Relationship* linda cardinal and marie-joie brady

There are three dimensions to citizenship that contribute to its constitution and contemporary definition: self-government, justice, and membership in a political community. According to John Pocock and Michael Sandel, the quality of citizenship depends on active participation in self-government and not mere agreement with the content of decisions made by the authorities.1 Therefore, citizenship defines women and men as political beings. Citizenship is ‘not just a means to being free; it is the way of being free itself.’2 Nonetheless, citizenship harbours an exclusive dimension in that it always presupposes an ‘us’ and a ‘them.’ Among other groups, slaves, women, Blacks, workers, and Aboriginal peoples were excluded from citizenship and deprived of its political, civic, and social benefits until the nineteenth and twentieth centuries. Identification with a political community is also that of individuals living in a particular place.3 We are citizens of a a burgh, a city, or, since the nineteenth and twentieth centuries, a nation-state. We are Americans, Argentineans, Canadians, or French. Citizens of the world do not exist. As Hannah Arendt explains, we all belong to a nation within which individuals realize their humanity or their quality of being as a citizen.4 The advent of a concept of citizenship founded on the ideal of justice – of a Roman and then liberal inspiration – allowed citizenship to become more inclusive.5 In the twentieth century, the gradual development of the welfare state also made possible the creation of a universal type of citizenship characterized by the acquisition of social and economic rights within the framework of the nation-state. However, according to Jean L. Cohen, globalization now generates forms of exclusion that the nation-state is no longer capable of combating.6 She argues

382 Linda Cardinal and Marie-Joie Brady

that whole categories of the population, economic and social refugees, are deprived of the benefits of citizenship. Moreover, the nation-state has been slow to react favourably to demands for self-determination by national minorities, minority nations, and indigenous peoples. In response to these issues, Cohen and many others have proposed to frame citizenship in postmodern, post-national, and post-sovereign terms in order to decouple the concept of citizenship from the concept of nation.7 These researchers are effectively, in one form or another, decentring citizenship. They contend that the nation-state will continue to respond poorly to internal and external pressures acting on it and that therefore it will eventually be forced to transform into a multinational or post-sovereign state. To engender such a transformation, (1) they propose the recognition of the principle of citizenship on multiple levels (local, provincial, national, federal, supranational, and international), and (2) they suggest granting universal rights, guaranteed by supranational and post-national authorities, in order to reduce the possibilities of exclusion. These issues are echoed in the debate surrounding citizenship in Canada and in Quebec. In this chapter, we note the existence of several discourses: a Canadian nationalist discourse, a social democratic discourse, and a post-imperial/post-colonial discourse. These discourses give a sense of direction to demands for certain rights. They also serve to help us better understand the debate that juxtaposes the national with the multinational as a pole of integration and a site of identification for citizens. Federalism is a critical issue in this debate. Federalism is the political, normative, and institutional framework for citizenship in Canada. It is constantly being questioned within debates concerning the application of rights, the accommodation of multinational diversity, and self-government. There is, however, more than one understanding of federalism. According to the francophone tradition of thought, Canadian federalism favours self-government and aims at permitting peoples and provinces to live together.8 In another tradition, more anglophone, federalism is viewed as a principle of efficiency for the formulation of public policy and the development of a pan-Canadian identity.9 Finally, there are those who see the basis of Canadian federalism as cooperation, interdependence, and collaboration among federated entities.10 The debate concerning Canadian federalism and citizenship must take into account these intellectual traditions. Indeed, these traditions help highlight issues related to the organization of power in Canada

Citizenship and Federalism in Canada  383

which any discussion on citizenship must confront in order to find solutions to the problem of exclusion. Conflicts that Quebec and First Nations experience in their relationship with the rest of Canada take place through federalism, as does the opposition of provinces and social movements to the central government. Therefore, citizenship and federalism in Canada have a difficult relationship. The discourses on citizenship in Canada are elaborated in tension with federalism rather than as a complement to it. Before proceeding to our examination of the difficult relationship between citizenship and federalism, it is necessary to outline the legislative and administrative framework of citizenship in Canada. We will then present the main discourses on citizenship – nationalist, social democratic and post-imperialist/postcolonialist – and their understanding of federalism. The Legislative and Administrative Framework of Citizenship in Canada In 1946 the Canadian government adopted its first law on citizenship. This law was preceded by the passing of the Naturalization Act in 1910 and the adopting of Canada’s first immigration policy in 1914. The Naturalization Act naturalized British subjects living in Canada who wished to be designated abroad as Canadians. In 1921 the federal government wanted Canada to be eligible for elections to the International Court of Justice. Finally, in 1946, after a visit to the military cemetery in Dieppe, Paul Martin Sr. piloted the adoption of the first law on Canadian citizenship.11 This law gave birth to a new status, that of Canadian citizen which was separate from that of a British subject.12 Paul Martin Sr. desired that both his current and future compatriots should develop a consciousness of their common goals and interests as Canadians.13 He did not see the law concerning citizenship as an expression of a narrow nationalism. Rather, he argued that the Canadian population lacked national pride at a moment where it had to learn how to play a meaningful role in world affairs. The Citizenship Act, much like the adoption of a Canadian flag, constituted a key symbol to create this national pride. Administratively, the goal of the new law was to eliminate certain anomalies and ambiguities regarding residence requirements of immigrants, knowledge of French and English, and the status of women and British subjects. Notwithstanding, Canadian citizenship did not yet exist judicially with the passage of this law.14 Canadian citizens remained

384 Linda Cardinal and Marie-Joie Brady

British subjects until 1977, when Canadian citizenship was recognized as a right in accordance with a number of new measures contained in amendments to the Citizenship Act. Among other things, the residence requirement was reduced from five to three years, the special treatment of British citizens was eliminated, differential treatment based on gender was removed, and dual citizenship was permitted. This new Citizenship Act constituted a framework that served to denounce the discriminatory practices that had defined the linkages between the British Crown and its many subjects such as Aboriginal peoples, British citizens, French Canadians, or immigrants. Until the first half of the twentieth century, Aboriginal peoples living on reserves had the status of minors. French Canadians also were given an inferior status through the multiple attempts to assimilate them by the British and English-Canadian authorities, as well as through the differential treatment of Catholics compared with Protestants that was woven into Canada’s social fabric. Several groups who had been living in Canada for generations, such as people of Chinese and Japanese origin, did not have the right to vote until 1949. Finally, women had a lower status. If suffrage was an important part of the development of women’s citizenship in Canada, it was obtained piece by piece. In 1916 widows of soldiers who had died in the Great War obtained the right to vote, in recognition of their contribution to the war effort. In 1917 this right was extended to all women, except Aboriginal women, who did not receive the right to vote until 1960. In summary, the Citizenship Act contributed to the creation of new demands for inclusion and the recognition of social rights and identities, as evidenced in the 1960s by the passage of the Official Languages Act and the Multiculturalism Act. Indeed, in 1982, the adoption of the Canadian Charter of Rights and Freedoms was the result of this movement towards a more inclusive citizenship. The recognition of rights does not constitute the whole of citizenship. Citizenship also involves issues of membership and belonging that never cease to preoccupy the Canadian population. Since the 1960s Canadian citizenship has had to engage with an important political movement of affirmation whose project it is to recast the partnership between Quebec and the rest of the country. During the 1980s and 1990s this movement forced Canadians to debate the status of Quebec within the Canadian federation. However, so far, all initiatives to accommodate the constitutional demands of Quebec have failed.15 During the 1990s a movement of affirmation of the Canadian nation

Citizenship and Federalism in Canada  385

emerged on the political scene. Its existence was confirmed during hearings of the Citizens’ Forum on Canadian Unity, known as the Spicer Commission, which was created by the federal government to gather the feelings and ideas of Canadians concerning the future of Canadian citizenship.16 Canadians expressed their worries about what they perceived to be the fragmentation of the country and an identity crisis. The population, according to the commissioners, wished to identify with common Canadian values of which diversity was only one element among others. For its part, in 1995, the Quebec government organized a referendum to receive from the population of the province a mandate to negotiate sovereignty-partnership with the rest of Canada. The great happening did not take place despite a very close referendum result. Indeed, 49.4 per cent of the voters wished to give such a mandate to the Quebec government, compared with 50.6 per cent who were against such a course of action; only slightly more than 50,000 votes separated the two camps, with 94 per cent of the Quebec electorate casting a ballot. The gap between Quebec and Canada remains large, and the opportunities for reconciliation between the two collectivities are rare. In 2004 the return to power of the federal Liberal Party, under the leadership of Paul Martin Jr., gave the impression of a federal government that had intentions to renew federalism, but little was accomplished. In 2006 the election of a Conservative government also raised new hopes. It is still too early to determine whether we are in the presence of a structure of political opportunities favourable to a greater awareness for Quebec’s preoccupations within the Canadian federation. Nonetheless, one could certainly associate the election of ten Conservative members of Parliament from Quebec, a first since 1993, with the promise of an open federalism by the new prime minister, Stephen Harper. In any case, up to now, the central government has opted for the reinforcement of a common and unifying citizenship project rather than recognizing the existence of the specificity of Quebec. Furthermore, Ottawa has attempted to block as much as possible the road towards new constitutional debates through adopting the Clarity Act in 1999. This law specifies the requirements to be fulfilled by a province for the Government of Canada to validate the results of a referendum, notably a referendum on the sovereignty of Quebec.17 Finally, in 2002, when the central government tabled a new bill on citizenship, it emphasized the importance of Canadian values by proposing to change ‘the oath of citizenship to include a direct expression

386 Linda Cardinal and Marie-Joie Brady

of loyalty to Canada.’18 The bill also proposed that ‘the Governor-inCouncil be able to refuse citizenship in those rare cases where a person demonstrates a flagrant disregard for Canadian values.’19 However, the bill died on the order paper. The same year, the report of the Romanow Commission on health care, entitled Building on Values: The Future of Health Care in Canada, was exemplary of this new approach. As the title suggests, Canadian values should serve as a guide to government action in the field of health care as in all other areas of public life in order to build a strong economy. Additionally, Canada is engaged in a vast enterprise to promote Canadian values and itself as a model society to emulate.20 Among these ‘Canadian’ values, we find democracy, pluralism, and individual rights.21 In summary, the federal government wishes to portray a strong vision of Canada and its values, not only for internal reasons but also to better compete against it rivals in the global marketplace and within the knowledge-based economy.22 In this regard, its discourse on citizenship becomes more neo-liberal and entrepreneurial than social and identity-based.23 Thus, the recognition of rights does not uniquely serve the recognition of Canadian diversity. It also justifies intervention by the federal government in some strategic policy areas such as early childhood learning, education, and health care in order to increase competitiveness within the knowledge-based economy. Quebec There also exists a history of citizenship in Quebec. This history goes back to the Patriots of the nineteenth century. In their uprising against the British regime, which they considered to be acting unjustly towards the population of the colony, the Patriots based their demands on the ideal of self-government.24 During the twentieth century, an important part of the French-Canadian and Quebec population also presented citizenship as an important way to increase Canada’s independence from the British Empire. Paul Martin Sr. can be partially situated within the framework of this movement. His adhesion to the project of Canadian citizenship was a direct result of his French-Canadian socialization.25 The project of a Quebec citizenship never achieved the same status as the citizenship project at the Canadian level. Quebec citizenship is generally conceived to be an internal citizenship, aimed at reminding citizens of the duties towards their collectivity. For example, the same

Citizenship and Federalism in Canada  387

year that the federal government adopted the Citizenship Act, Esdras Minville published a work on French-Canadian citizenship in which he formulates a set of propositions linked to his effort to define the teaching of civic duties in Quebec. Minville emphasized the importance of developing a sense of personal autonomy, conceived as ‘essential to the accomplishment of French Canadians’ destiny in keeping with the present forms of social solidarity.’26 According to Minville and several of his contemporaries, French Canada had a special mission in North America dictated by its Catholic faith and its French-Canadian culture. Thus, its citizenship had to be defined in relation to the dimensions of its culture. The debate concerning the possibility of a Quebec citizenship was defined more specifically during the 1990s, in particular within the Estates-General on the situation and future of the French language in Quebec. The final report of the Estates-General argued that, while the French language was still at the heart of the definition of citizenship in Quebec, the difference within the current era was that the French language now belonged to all citizens of Quebec and not exclusively to the majority group. Thus, according to the report, ‘all people living in the territory of Quebec, regardless of their origin, receive the official and common language of Quebec. French has become the privileged means to access the civic heritage (values, right, duties, etc.) common to all Quebecers on which citizenship is founded.’27 According to Jean-François Lisée, a Quebec citizenship would increase the legitimacy of Quebec identity in the eyes of new arrivals regardless of whether Quebec is sovereign or not.28 It could also serve to reinforce the singularity of Quebec on the North American continent through the affirmation of a Francophone North American project.29 The Quebec government has yet to act on this citizenship project. However, a provincial Department of Immigration and Cultural Communities does exist, and its principle objectives are to oversee the selection of immigrants and facilitate their integration into Quebec society.30 Canadian Discourses on Citizenship There exist multiple discourses in Canada to guide or evaluate the practice of citizenship and influence the orientation of the citizenship debate. Among the most important, we will examine the nationalist, social democratic, and post-imperialist/post-colonialist discourses. These tend to combine the different dimensions of citizenship – self-

388 Linda Cardinal and Marie-Joie Brady

government, justice, and identity – in an attempt to resolve the problem of exclusion. As such, the nationalist discourse focuses on the identity function of citizenship, while the social democratic discourse emphasizes the ideal of justice. Post-imperialist/post-colonialist discourse stresses questions concerning the conditions of participation in democratic life. We will present each one of these discourses in more detail in this section and examine their ways of confronting the different tensions that generate exclusion within Canadian society. Nationalist Citizenship Discourse Nationalist citizenship discourse understands citizenship in terms of identity and as an essential dimension to the development of a sense of belonging to the political community of a nation-state.31 In general, in anglophone Canada, nationalists usually adhere to the principle that the central government is the spokesperson for the ultimate interests of the nation. In Quebec, nationalism is presented as a vehicle for the project to found and maintain a francophone society in North America.32 To simplify, in Quebec, as within the rest of Canada, nationalists conceive of citizenship as a means by which to serve the nation. The existence of a rivalry between these two nationalist projects plays a role in understanding their unifying potential and their capacity to foster an inclusive citizenship. In anglophone Canada, the Quebec national project is often described as an exclusive and ethnic project, while Canadian nationalism is perceived as being inclusive and open to the world.33 In Quebec, Canadian nationalism is perceived as closed to the multinational diversity of the country, and Quebec nationalism is conceived as being civic and open. Yet, even if these nationalists share the same passion for the nation, there exist several currents of thought among Canadian and Quebec nationalists. One could think of nationalist liberals, such as Will Kymlicka and Michel Seymour, who base the realization of citizenship on the capacity of governments to accommodate minorities and respect individual liberties.34 The recognition of multiethnic rights and rights to self-determination, as well as rights to representation is considered essential to the integration of different groups into the nation and their sense of belonging to the political community. The principal currents of Canadian and Quebec feminism are also part of this movement of ideas, as is multiculturalism.35 In fact, Canadian and Quebec feminisms resist the exclusive or ethnic definition of the nation more than they aim at deconstructing the latter – to the point of refusing all forms

Citizenship and Federalism in Canada  389

of belonging to a given national framework.36 Often, they also identify with an anti-American nationalism and with the collective, social, and cultural rights contained in the Canadian Charter of Rights and Freedoms, the Quebec Charter of Rights, and the Quebec Charter of the French Language. Conservative nationalists generally are more favourable to the ideal of individual rights rather than rights which apply to a collective or to a group. Kenneth Carty and Peter Ward, for example, contend that the granting of collective rights is reminiscent of the monarchical and imperial history of Canada and does not permit a clear definition of what it means to be Canadian.37 This reasoning is not anodyne. The attempt is to shake off a heritage that no longer interests the Canadian population because of its association with the Royal Family in the United Kingdom and a process of selection of Canada’s governor general, which does not conform to the requirements of a democratic society. Social Democratic Citizenship Discourse Social democratic discourse emphasizes the social and economic dimensions of citizenship. It deals with the conditions for the realization of the ideal of justice. Among the authors associated with this perspective, Jane Jenson38 and Gilles Bourque and Jules Duchastel39 see the development of citizenship as a series of steps leading progressively towards the welfare state and the advent of a universal and egalitarian citizenship regime. Influenced by the approach of T.H. Marshall, they argue that the advent of the neo-liberal economy and globalization constitutes a challenge to the maintaining of this type of universal citizenship. According to Bourque and Duchastel, citizenship has become more particularistic, more cultural, and more judicial.40 For them, the emergence of neo-liberalism in the 1980s and 1990s transferred the debate concerning rights and justice from the sphere of representative democracy to a techno-judicial one characterized mainly by the development of parallel forms of governance and by the use of courts as a mode of resolving conflicts.41 Therefore, Bourque and Duchastel echo Alan C. Cairns, who holds that the logic of rights has had the effect of increasing the fragmentation of political life through the recognition of a multiplicity of elements such as language, culture, religion, and gender.42 Notably, Cairns argues that the demands of Aboriginal peoples to be treated as nations nourish a separatist approach that is harmful to the ideal of a common citizenship.43 Furthermore, he believes that English-Canadian social movements, especially the women’s movement

390 Linda Cardinal and Marie-Joie Brady

and multicultural groups, undermined the unity of Canada by refusing to support the federal government’s attempts to recognize formally a distinct status for Quebec during the 1980s and 1990s.44 In contrast to Cairns, Jenson does not see social movements as dangers to the common good. Rather, she views them as the most important defenders of the welfare state and of ‘national standards’ within the field of public policy. In opposition to the critiques of the judicialization of political life such as those of Rainer Knopff and F.L. Morton,45 Jenson is also in favour of the constitutionalization of rights granted to official language minorities, ethnic groups, women, visible minorities, the disabled, and Aboriginal peoples. She criticizes the effects of neoliberalism on citizenship that, according to her, serve to discredit the political role of groups in public debate by branding them as interest groups. Jenson argues that the state is thus withdrawing, little by little, from the project of a civil society that actively participates in social innovation.46 In Quebec It is worth nothing that in the debate on social rights, the Quebec government combines competitiveness and nationalism in ways distinct from the rest of Canada.47 The government has supported the province’s francophone business class and favoured the integration of Quebec into the North American economy. Thus, Quebec has attempted to combine a generous regime of social and economic rights with openness to foreign capital.48 Its actions are not always different from those of the Canadian state. However, according to Jenson, many misunderstandings are caused by the fact that anglophone Canada does not take into account that Quebec uses its state powers differently from other provinces and the federal government. Quebec tries to use its economic levers, such as pension plans, to favour the advancement of Quebec society as a collectivity and not only for the well-being of individuals. For Jenson, Quebec and Canada have similar citizenship regimes, except that the two regimes have radically different objectives. Canada endeavours to protect the well-being of individuals, while Quebec aims to assure the future of a collectivity. Post-imperial/Post-colonial Discourse Post-imperial/post-colonial discourse emphasizes the plural and multi­

Citizenship and Federalism in Canada  391

national dimensions of citizenship. Among the representatives of this approach are Joseph Carens, Alain-G. Gagnon, and James Tully.49 All define Canada as a multinational democracy. Notably, they aim at identifying the conditions of justice and participation in civic life or selfgovernment for individuals, groups, and nations living within national or multinational democracies. Tully presents multinational democracies as societies containing multiple intermingling nations that coexist in relatively equitable relationships.50 Among these nations in Canada, he considers that Quebec and Aboriginal peoples possess a right to self-determination that is recognized in international law. Thus, Quebec and Canada’s First Nations should have the possibility to realize themselves as free and democratic societies. In Culture, Citizenship and Community, Carens argues that there exists, within Canada, the real possibility to belong to two political communities.51 The rights and duties of citizens do not depend only on the central state but also on the different levels of government that have authority over them. In contrast with some nationalists, Carens contends that it is false to believe that the federal level is or has to be the ultimate arbitrator in its confrontations with other governments, in this case the provinces.52 Post-imperial/post-colonial discourse is not limited to the self-government of nations. It also views the demands for recognition from women, cultural, linguistic, and religious minorities as demands for self-determination. It argues that these groups should be able to contest, negotiate, and modify the norms that govern their participation in democracy as free beings in the same way that nations do.53 As Jocelyn Maclure explains, individuals become citizens through participating in deliberation on common and unique issues.54 In summary, citizenship is realized in the framework of a continuing process of discussion. Decisions are taken and compromises are made and unmade according to the contexts and the issues. For Maclure and Tully, one of the objectives of democratic societies is the realization, in effect, of a multilogue within conditions of non-domination.55 The first condition of non-domination is the recognition of the liberty of citizens to alter the rules of the constitutional game of mutual recognition and association as identities change. The second condition of non-domination is the possibility to participate in decision-making because each decision that affects the whole of the citizenry must be taken by all citizens. Decision-making must be done within just and equitable conditions of deliberation; however, it is likely that decisions will not always

392 Linda Cardinal and Marie-Joie Brady

be unanimously adopted, and certain citizens will feel excluded from the final decision. In the context of non-domination, however, defeated citizens know that they can eventually restart the multilogue. Citizenship and Federalism: A Difficult Relationship Beyond its legal and administrative definition, citizenship calls for deliberation or for a multilogue rather than a fixed position given once and for all. Within this debate, questions pertaining to the conditions of participation in self-government, membership, and rights are a challenge to the different discourses in their attempts to address issues of exclusion. For nationalists, citizenship constitutes a space for the recognition of individual and collective rights more than it encourages participation. For advocates of a social democratic discourse, the hope is to reconcile rights with participation, while proponents of post-imperial/post-colonial discourse insist on self-government over rights. In each case, as we will see below, federalism takes on a particular connotation. Nationalism and Federalism Generally, we note that the representatives of the nationalist discourse on citizenship subordinate federalism to the theme of belonging to a political community or to the nation. As such, for some conservative nationalists, federalism is not only associated with an imperial heritage but is also conceived as adding to the difficulty of promoting the membership of citizens within a sole political community.56 Carty and Ward evoke the Charter rather than federalism as a means to foster identity. They view in the latter nationalists objectives that can inform the enunciation of norms and rights pertaining to a common Canadian citizenship founded on the primacy of individual rights. Hence, the judicialization of politics permits the nationalization of citizenship, while federalism is perceived as belonging to an era that they would rather not recall. According to Carty and Ward, courts must define positive criteria through which governments and citizens can measure their actions.57 Their project of a national community is based on the logic of individual rights and the need for unity. In fact, it rejoins the dominant tendency within the federal government since the 1980s, as we have already seen above. In contrast, Kymlicka and Seymour argue that Canada is a multinational federation. In other words, Canada is a nation which allows

Citizenship and Federalism in Canada  393

several national and sovereign entities to coexist within it. According to the perspective of multinational federalism, we must recognize minority nations within the Canadian nation and the right of these nations to participate in the management of public affairs as equal partners. This project is certainly more generous towards national groups within Canada than that of a nation founded on the logic of individual rights. However, Kymlicka anticipates difficulties arising from such a generous project. If there is such an entity that we can image as anglophone Canada, very few Canadians would spontaneously say that they belong to an English-Canadian nation.58 Similar to the designation of FrenchCanadian nation, the term English-Canadian nation has now fallen into disuse. As Kenneth McRoberts explains, a gap exists between theories of Canada as a multinational state and the reality. He contains that, while there are internal nations within Canada, the latter does not always function as a multinational society.59 Moreover, McRoberts points out that it is federalism, more than the idea of a multinational society, which has permitted an ambiguity favourable to the recognition of the specific needs of Quebec. Federalism has made possible the coexistence of competing visions of citizenship and nationality without causing harm to the country’s stability. However, McRoberts does recognize that strong pressure is exercised on Quebec citizens to make them choose between being Canadian first and Quebecer second or vice versa. Nationalists are not particularly concerned with the requirements of interdependency, collaboration, and cooperation among different federated units. While the nationalist discourse is favourable to federalism as a principle of organization, it has difficulty embodying the type of compromise that is necessary to the logic of federalism. Simply put, it seems to us that liberal nationalist discourse serves to justify the putting in place of a parallelism rather than federalism based on interdependence and cooperation. Thus, for nationalists, the question of membership and identity can be posed in multiple terms but federalism remains subordinated to the nation. Social Democracy and Federalism The social democratic discourse postulates the existence of several citizen regimes in Canada but federalism seems to have been passed over in favour of a pan-Canadian and particularist conception of rights and membership. Jenson, who adheres to the idea of multinational federal-

394 Linda Cardinal and Marie-Joie Brady

ism as a possible means of reconciliation between Quebec and Canada, argues that three principles should guide the action of Canada in the area of citizenship. According to Jenson, societies are no greater than the sum of their parts; hierarchies among the diverse loyalties of a citizen do not exist; and the spaces for dialogue must be diversified.60 As such, she recognizes that ‘Canada can, for historical reasons that are its own, emphasize individual rights; but this does not authorize it to deny to other societies, who share its territory, the possibility to make different choices.’61 For their part, Bourque and Duchastel contend that Canada and Quebec should become associated states instead of remaining as partners in a federation.62 Their ideal would be a true confederation rather than a federation. They advocate the creation of an institution similar to the European Parliament within Canada and which would be situated above nations. Hence, Canada would resemble a post-sovereign and post-national state. If federalism seems outdated for social democratic discourse, several who identify with the ideal of the welfare state, nevertheless, continue to believe that federalism could be useful for the management of public policies. These researchers, who are mostly found in anglophone Canada, have a pragmatic approach to federalism. First advanced by the Rowell–Sirois Commission,63 in the 1940s, this position conceives of federalism in functional terms as an instrument for attaining a greater efficiency in the formulation of public policies.64 More recently, the debate surrounding globalization served as a pretext to renew this approach that, indirectly, had taken for granted that federalism would become obsolete. More precisely, the renewed pragmatic or functional approach argues that collaboration among different levels of government is increasingly necessary to meet the challenges of competitiveness and the demands of the knowledge-based economy. The management of public policies calls for a more efficient coordination between different governmental and non-governmental actors to find solutions to social and economic problems and favour innovation. As such, actors will wish to revisit the logic of confrontation that opposes the provinces to the central government, in order to replace it with an approach founded on a mixture of ‘national standards’ and the principle of subsidiarity. A discourse on multilevel governance has also been elaborated within this approach. It rests on the need for diverse actors to work together to find solutions to problems within the Canadian federation in relation to particular objectives and results, with the aim to give greater responsibility to citizens.

Citizenship and Federalism in Canada  395

This renewed pragmatic approach has paved the way for the adoption of intergovernmental agreements in several important areas such as Aboriginal affairs, internal trade, and infrastructure. The best-known intergovernmental agreement, the Social Union Framework Agreement (SUFA), signed in 1999, had the objective of insuring that the development and maintenance of a social union is favourable to a more optimal adjustment of social programs. However, Quebec refused to sign the agreement.65 Critical of ‘functional federalism,’ Alain Noël argues that the two terms do not go well together. According to him, functional federalism ‘distorts the federal game by judging the division of powers through a lens of results for individuals, communities or other groups.’66 Indeed, to ‘reduce federalism to the mere optimizing of results for citizens, to make it a means through which the decentralization of the offer of goods and services can take place is to deny its specificity, just to meet the demands of scholastic concepts’67 much like a ‘unitary state does in relation to its regions.’68 Noël argues that the best possible political base to realize solidarity or citizenship is situated on the level of national communities.69 Thus, he appropriates, in his own manner, the thesis of a multinational society and accepts the proposition of Bourque and Duchastel that Canada and Quebec should become associated states.70 For Noël, in the face of globalization, it is important to permit ‘innovation where it emerges’ rather than privileging and developing ‘national approaches for everything.’71 Under such an approach, both citizenship and the Canadian federation would be better off! In summary, the debate on federalism within the social democratic approach to citizenship oscillates between the idea of associated states and the concept of a country where self-government is subordinated to efficiency. In the latter case, federalism is conceived of more as a technique of government than as a mode of representation of multinational diversity. Pluralist Federalism Generally, the post-imperial/post-colonial discourse concerning citizenship adheres to a project of pluralist federalism within multinational democracies. This project is similar to the multinational federalism proposed by Kymlicka and Seymour but is distinguished by efforts to give federalism an historical anchor and to renew debates on civic liberty within democratic and pluralist societies. Tully recalls that Judge Thomas-Jean Jacques Loranger in the nineteenth century also argued

396 Linda Cardinal and Marie-Joie Brady

that federalism was an ‘irregular and multiform assembly,’72 making him one of the first Canadian theorists of pluralist federalism. Loranger, who had a special interest in Quebec, presented it as ‘a sovereign constitutional society that has a multicultural composition and has governed itself by virtue of its unique laws and customs for centuries.’73 Thus, Loranger gives to Tully the required historical foundation to think about the demand for self-government within the contemporary debate on Canadian federalism. He proceeded in the same manner to justify the demands of Aboriginal peoples by invoking the tradition of mutual recognition that characterized the first meeting of Europeans and Aboriginal peoples on the island of the Great Turtle. The originality of the pluralist federalist approach also comes from its understanding that the struggle for recognition on the part of nonnational actors constitutes a struggle for freedom. For pluralist federalists, we cannot exclude these non-national actors from the federal compromise because it is important to promote an enlarged conception of freedom within contemporary societies founded on a multilogue. The creation in 2003 of a Council of the Federation could be considered to be an example of a new institution favourable to the redefinition of federalism along pluralist lines, even if it has not yet proven its potential in this regard and little enthusiasm for it has been expressed.74 The emergence, within provinces, of a new movement for the reform of the electoral system and the increased political participation of groups also illustrates, as Carens notes, that the ‘national’ level – formally known as ‘federal’ – is not the only space favourable to the expression of democratic freedom. In 2004 the signing of an agreement between the federal and Quebec governments recognizing the principle of asymmetrical federalism also constituted an opening towards pluralism.75 The agreement invoked the specificity of Quebec and its will to maintain its leeway within the field of health care.76 Conversely, the adoption of the agreement provoked a debate concerning asymmetrical federalism within Canada. Benoît Pelletier, the Quebec minister of intergovernmental affairs at the time, stated that asymmetry would ‘increase mutual trust and improve, in a sustainable manner, relations between Quebec and the rest of Canada.’77 On the other hand, for Senator Serge Joyal, this type of federalism would put an end to the idea of Canada because all forms of asymmetrical decentralization and compromise should be understood as threats to the sovereignty of the country and its integrity.78 For Joyal, it is as if the recognition of the distinct character of Quebec was an unacceptable demand regardless of the several

Citizenship and Federalism in Canada  397

asymmetrical practices already part of the legislative and normative realms. Moreover, Canadians recognize the specificity of First Nations and even of Acadians. Why did the question of the distinct character of Quebec provoke such a negative reaction? For their part, through privileging multilogue, pluralist federalists sometimes give the impression of a purely linguistic conception of liberty that does not challenge the persistent refusal of the majority of Canadian political actors to recognize the distinct voice of Quebec. Furthermore, pluralist federalists do not have a specific vision of the forms of federalism required to foster self-government. Multinational democracies can include both federal and confederal dimensions. These dimensions may be asymmetrical but nothing prevents symmetrical federalism to facilitate the realization of freedom. After all, the most important task for pluralist federalists is the creation of conditions favourable to the participation of actors in a multilogue – and federalism need not be asymmetrical to accomplish such a task. Conclusion In summary, we note that Canada is an interesting example of the relationship between citizenship and federalism. The marriage between these two phenomena seems to be easier in political theory than what the reality of political debate in Canada demonstrates. However, we should realize that we are now in possession of a new vocabulary. Nations, multinational societies, associated states, individual and collective rights, functional governance, and multilogue are new terms with which we will be evaluating both Canadian citizenship and Canadian federalism in the future. This vocabulary was formulated during recent debates within political theory that attempted to resolve the question of exclusion. However, such debates do not necessarily provide definitive answers to resolve the tensions that exist between federalism and citizenship. We have seen that federalism constitutes an institutional space in which citizenship is in tension with Canadian nationalists’ ideal of community advocating a sole sentiment of belonging. The social democratic account of citizenship recognizes the existence of several citizenship regimes in Canada while also arguing that federalism is outdated and has been replaced by a pan-Canadian and particularistic conception of rights and membership. Finally, for the post-imperialist/post-colonial approach to citizenship, the role accorded to federalism in relation to

398 Linda Cardinal and Marie-Joie Brady

the possibility of a multilogue remains to be defined. This analysis also allows us to conclude that the citizenship debate has substantially contributed to modify the terms with which to address issues pertaining to the recognition of diversity but also that it reproduces tensions within itself. As such, Canada represents an example of a country in which the tensions between citizenship and federalism are a long way from being resolved. One can thus expect that the difficult relationship between the two will be an enduring one. Notes   * Research for this chapter was financed by the Social Sciences and Humanities Research Council of Canada (grant number 410-2003-0170). We would like to thank Pierre Boyer, Anne-Andrée Denault, Alain-G. Gagnon, Junichiro Koji, and Jackie Steele for their comments and suggestions. The text has been translated from French by David McGrane.   1 John G.A. Pocock, ‘The Ideal of Citizenship since Classical Times,’ in Gershon Shafir, ed., The Citizenship Debates (Minneapolis: University of Minnesota Press, 1998), 31–42. As Michael Sandel explains, self-government corresponds to ‘deliberating with fellow citizens about the common good and helping to shape the destiny of the political community’; see his Democracy’s Discontent (Cambridge, MA: Belknap Press of Harvard University Press, 1996), 5.   2 Pocock, ‘Ideal of Citizenship,’ 34.   3 Sandel, Democracy’s Discontent, 5; Charles Taylor, Philosophical Arguments (Cambridge, MA: Harvard University Press, 1995), chapter 11, ‘Invoking Civil Society,’ 204–24.   4 Hannah Arendt, ‘Le déclin de l’État-Nation et la fin des droits de l’homme,’ in Les origines du totalitarisme: L’impérialisme (Paris: Fayard, 1951), 239–92. For Arendt, when nation-states refuse to give refugees or expatriates the right to act or have an opinion, these persons lose their quality as human beings, see 281.   5 T.H. Marshall, Citizenship and Social Class (Cambridge: Cambridge University Press, 1950).   6 Jean L. Cohen, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos,’ International Sociology 14/3 (1999): 245–68.   7 Among numerous studies on the question, see Michael Keating, ‘Par-delà la souveraineté: La démocratie plurinationale dans un monde postsouverain,’ in Jocelyn Maclure and Alain-G. Gagnon, eds., Repères en muta-

Citizenship and Federalism in Canada  399 tion: Identité et citoyenneté dans le Québec contemporain (Montreal: Québec Amérique, 2001), 67–102, and Geneviève Nootens, Désenclaver la démocratie: Des huguenots à la paix des Braves (Montreal: Québec Amérique, 2004).   8 François Rocher, in this book, associates this tradition with the Tremblay Commission. For an historical study of this conception of federalism, see also Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, 1999).   9 This tradition, to use Rocher once again, is represented by the Rowell–Sirois Commission. See also Albert Breton, Raymond Breton, Marc Lalonde, Maurice Pinard, Claude Bruneau,Yvon Gauthier, and Pierre Elliott Trudeau, ‘Manifeste pour une politique fonctionnelle,’ Cité Libre (May 1964) : 11–17. 10 We are thinking here of the work of André Burelle, esp. his book Le mal canadien: essai de diagnostic et esquisse d’une thérapie (Montreal: Fides, 1995). 11 Paul Martin, ‘Citizenship and the People’s World,’ in William Kaplan ed., Belonging: The Meaning and Future of Citizenship in Canada (Montreal: McGill-Queen’s University Press, 1993), 67. 12 Pierre Boyer, Linda Cardinal, and David Headon, eds., From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada (Ottawa: Ottawa University Press, 2004). According to Robert Bothwell, Canadian citizenship before 1946 had nothing to do with the ancient Greek concept of citizenship. Rather, Canadian citizenship corresponded to the citizenship of a subject; see his ‘Something of Value? Subjects and Citizens in Canadian History,’ in Kaplan, Belonging, 27–8. 13 Martin, ‘Citizenship and the People’s World,’ 70. 14 Margaret Young, La citoyenneté canadienne: la loi et la situation actuelle (Ottawa: Government of Canada, Parliamentary Research Directorate, Oct. 1997, revised Aug. 1998). 15 Alain G.-Gagnon, ‘Le dossier constitutionnel Québec-Canada,’ in Alain-G. Gagnon, ed., Québec: État et société, vol. 2 (Montreal: Québec Amérique, 2003), 151–74. 16 Commission Spicer, Forum des citoyens sur l’avenir des citoyens (1991), available at www.uni.ca/spicer_part2html. 17 Andrée Lajoie, ‘La loi sur la clarté dans son contexte,’ in Alain-G. Gagnon, Québec, 175–90. 18 Citizenship and Immigration Canada, News Release 2002-38, Ottawa (31 Oct. 2002), available at http://www.cic.gc.ca/english/press/02/0238-pre. html, accessed on 6 Sept. 2006. 19 Ibid. 20 Will Kymlicka, ‘The Canadian Model of Diversity in a Comparative Per-

400 Linda Cardinal and Marie-Joie Brady spective,’ Eighth Standard Life Visiting Lecture, University of Edinburgh, Edinburgh, 29 April 2004. 21 For a study on the question of Canadian values, see Joseph Heath, Le mythe des valeurs communes au Canada (Ottawa: Centre canadien de gestion, 2003). 22 Thomas J. Courchene, ‘Social Policy and the Knowledge Economy: New Century, New Paradigm,’ Policy Options 25/7 (2004): 30–7. 23 Janine Brodie, ‘Three Stories of Canadian Citizenship,’ in Robert Adamoski, Dorothy E. Chunn, and Robert Menzies, eds., Contesting Canadian Citizenship: Historical Readings (Peterborough: Broadview Press, 2002), 63. 24 Louis-George Harvey, Le Printemps de l’Amérique française: Américanité, anticolonialisme et républicanisme dans le discours politique québécois, 1805–1837 (Montreal: Boréal, 2005); Gérard Bouchard, ‘Le rêve patriote, moment phare du passé québécois,’ Le Devoir (27 June 2005), A7. 25 Martin, ‘Citizenship.’ 26 Esdras Minville, Le citoyen canadien-français: Notes pour servir à l’enseignement du civisme (Montreal: Fides, 1946), 337. 27 Commission des États généraux sur la situation et l’avenir de la langue française au Québec, Le français, une langue pour tout le monde, une nouvelle approche stratégique et citoyenne (Quebec: Gouvernement du Québec, 2001), 13. 28 Jean-François Lisée, ‘La clé du dilemme linguistique? L’originalité québécoise.’ Extrait du mémoire présenté devant la commission des États généraux sur la situation et l’avenir de la langue française au Québec, Le Devoir (12 Dec. 2000), A7. 29 Gérard Bouchard, La nation au passé et au présent (Montreal: Boréal, 1999); Nicholas van Schendel, ‘Une américanité de la francophonie? Les perceptions des migrants québécois,’ in Donald Cuccioletta, ed., L’américanité et les Amériques (Quebec: l’Institut québécois de recherche sur la culture, 2001), 193–224. 30 For more details see Department of Immigration and Cultural Communities at http://www.micc.gouv.qc.ca/, accessed on 29 June 2005. 31 Canadian nationalism cannot be uniquely defined as English-Canadian nationalism, which is part of the category of majority nationalism. Rather, one must also include Québécois nationalism and Aboriginal nationalism, which are minority nationalisms. For an excellent study of nationalism and pluralism within Quebec, see Dimitrios Karmis, ‘Pluralisme et identité(s) nationale(s) dans le Québec contemporain: clarifications conceptuelles, typologie et analyse du discours,’ in Gagnon, Québec: État et société, vol. 2, 85–116.

Citizenship and Federalism in Canada  401 32 It is important to underline the contribution of Gérard Bouchard to this discourse; see his La nation québécoise. 33 This point of view is held by a number of important nationalists and observers in anglopohone Canada. See Ronald Beiner, ed., Theorizing Nationalism (New York: State University of New York Press, 1999). 34 Will Kymlicka, La citoyenneté multiculturelle (Montreal: Boréal, 2003) ; Michel Seymour, La nation en question (Montreal: Liber, 1999), and ‘Le droit des peuples,’ Bulletin d’histoire politique 12/3 (2004): 79–88. 35 See Sherrill Grace, Veronica Strong-Boag, Joan Anderson, and Avigail Eisenberg, ‘Constructing Canada: An Introduction,’ in Strong-Boag et al., eds., Painting the Canadian Maple: Essays on Race and Gender and the Construction of Canada (Vancouver: UBC Press, 1998), 3–18 ; Sylvia Bashevkin, ‘In the Shadow of Free Trade: Nationalism, Feminism and Identity Politics in Contemporary English Canada,’ Journal of Canadian Studies 35/2 (2000): 108–27. 36 For a good example of the debate on the relationship between feminism and nationalism in Canada, see Jill Vickers and Micheline de Sève, ‘Introduction,’ Journal of Canadian Studies 35/2 (2000): 5–34 ; and de Sève, ‘Women’s National and Gendered Identity: The Case of Canada,’ Journal of Canadian Studies 35/2 (2000): 61–79. 37 R. Kenneth Carty and W. Peter Ward, ‘The Making of a Canadian Political Citizenship,’ in Carty and Ward, eds., National Politics and Community in Canada (Vancouver: UBC Press, 1986), 65–79. 38 For Jane Jenson, see ‘Citizenship Claims: Routes to Representation in a Federal System,’ in Karen Knop, Sylvia Ostry, Richard Simeon, and Katherine Swinton, eds., Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver: UBC Press, 1995), 99–118 ; and ‘Reconnaître les différences: sociétés distinctes, régimes de citoyenneté, partenariats,’ in Guy Laforest and Roger Gibbins, eds., Sortir de l’impasse. Les voies de la réconciliation (Montreal: IRPP, 1998), 235–62. See also J. Jenson and Susan D. Phillips, ‘Regime Shifts: New Citizenship Practices in Canada,’ Revue internationale d’études canadiennes, no. 14 (Fall 1996): 111–35 ; Jane Jenson and Martin Papillon, ‘Les frontières de la citoyenneté sous tension: les Cris de la Baie James et la redéfinition de la communauté politique canadienne,’ in Jules Duchastel, ed., Fédéralisme et mondialisation: L’avenir de la démocratie et de la citoyenneté (Montreal: Athéna, 2003), 133–50; Jane Jenson, Citizenship, Governance and the Provision of Services (Ottawa: Canadian Policy Research Network [CPRN], 2003); Alexandra Dobrowolsky and Jane Jenson, ‘Shifting Representations of Citizenship: Canadian Politics of ‘’Women’’ and ‘’Children,’’’ Social Politics 11/2 (2004): 154–80.

402 Linda Cardinal and Marie-Joie Brady 39 For Gilles Bourque and Jules Duchastel, see Gilles Bourque, Jules Duchastel, and Éric Pineault, ‘L’incorporation de la citoyenneté,’ Sociologie et sociétés 31/2 (1999): 41–64; Gilles Bourque and Jules Duchastel, ‘Mondialisation, citoyenneté corporative et logique confédérale,’ in Duchastel, Fédéralisme et mondialisation, 117–32; and Gilles Bourque, Jules Duchastel, and Jacques Beauchemin, ‘Du providentialisme au néolibéralisme: de Marsh à Axworthy – Un nouveau discours de légitimation de la régulation sociale,’ in Cahiers de recherche sociologique, no. 24 (1995), 15–47. 40 Bourque and Duchastel, ‘Mondialisation.’ 41 Bourque et al., ‘L’incorporation de la citoyenneté.’ 42 Alan Cairns, ‘The Fragmentation of Canadian Citizenship,’ in Belonging, 181–220. This debate is not unique to Canada. See also the review Prospect (April 2005): 20–5, concerning the debates on the possibilities of a common European identity within the context of the European Constitution and its effects on the United Kingdom. 43 Alan Cairns, Citizens Plus (Vancouver: UBC Press, 2000). 44 Alan Cairns, Charter vs. Federalism (Montreal: McGill-Queen’s University Press, 1992). 45 Rainer Knopff and F.L. Morton, Charter Politics (Scarborough: Nelson Canada, 1992), and The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000). 46 See also Pierre Hamel, Louis Maheu, and Jean-Guy Vaillancourt, ‘Repenser les défis institutionnels de l’action collective,’ Politiques et Sociétés 19/1 (2000): 3–25; Susan Phillips, ‘Interest Groups, Social Movements, and the Voluntary Sector: En Route to Reducing the Democratic Deficit,’ in James Bickerton and Alain-G. Gagnon, eds., Canadian Politics (Peterborough: Broadview Press, 2004), 343; Rachel Laforest and Susan Phillips, ‘Repenser les relations entre gouvernement et secteur bénévole: à la croisée des chemins au Canada et au Québec,’ Politique et Sociétés 20/2–3 (2001), 37–68 and 3–25; Tanya Basok, ‘The Voluntary Sector and the Depoliticization of Civil Society: Implications for Social Justice,’ Revue internationale d’études canadiennes, no. 28 (Fall 2004): 113–32; and Linda Cardinal and Luc Juillet, ‘Les minorités francophones hors Québec et la gouvernance des langues officielles au Canada,’ in Jean-Pierre Wallot, ed., La gouvernance linguistique: le Canada en perspective (Ottawa: Les presses de l’Université d’Ottawa, 2005), 157–76. 47 François Rocher, ‘Le Québec dans les Amériques: de l’ALE à la ZLEA’ in Gagnon, Québec: État et société, vol. 2, 455–80. 48 Peter Graefe, ‘Nationalisme et compétitivité: le Québec peut-il gagner si les Québécois perdent?’ in Gagnon, Québec, vol. 2, 481–504. Great Britain

Citizenship and Federalism in Canada  403 would also be an interesting case in that it combines a commitment to the welfare state with policies favourable to economic individualism. See Nick Pearce and Mike Dixon, ‘New Model Welfare,’ Prospect (April 2005): 20–1. 49 Among their most important works are: Joseph Carens, Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford: Oxford University Press, 2000); Alain-G. Gagnon and James Tully, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001); Seymour, ‘Le droit des peoples.’ 50 James Tully, ‘Introduction’ in Gagnon and Tully, Multinational Democracies, 3. 51 Carens, Culture, 164. 52 Ibid., 175. 53 James Tully, ‘La conception républicaine de la citoyenneté dans le cadre des sociétés multiculturelles et multinationales,’ Politique et Sociétés 20/1 (2001): 123–45. 54 Jocelyn Maclure, ‘L’intégration par la raison publique: Une esquisse,’ Bulletin d’histoire politique 12/3 (2004): 57. 55 Ibid. Tully, ‘Introduction,’ 6. For a more detailed study of the concept of non-domination, see Philip Pettit, ‘Minority Claims under Two Conceptions of Democracy,’ in Duncan Ivison, Paul Patton, and Will Sanders, eds., Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2002), 199–215. According to Petit, democracy must accommodate minorities and make room for confrontation. Within this democracy, there should be spaces to allow minorities to be heard. 56 Carty and Ward, ‘The Making of a Canadian Political Citizenship,’ 77. 57 Ibid. 58 For an examination of this debate, see Philip Resnick, Thinking English Canada (Toronto: Stoddart, 1994). 59 Kenneth McRoberts, ‘Canada and the Multinational State,’ Canadian Journal of Political Science 34/4 (2001): 683–714. 60 Jenson, ‘Reconnaître les différences,’ 254. 61 Ibid., 255. 62 Gilles Bourque and Jules Duchastel, ‘Démocratie et communauté politique supranationale,’ Cahiers de recherche sociologique, no. 28 (1997): 149–67. 63 For more details, see François Rocher’s chapter in this book. 64 Thomas O. Hueglin, ‘New Wine in Old Bottles? Federalism and Nation States in the Twenty-First Century: A Conceptual Overview,’ in Knop et al., Rethinking Federalism, 209; Richard Simeon and Ian Robinson, ‘The Dynamics of Canadian Federalism,’ in Bickerton and Gagnon, Canadian Politics, 101–26; Thomas J. Courchene, ‘Hourglass Federalism – How the Feds Got

404 Linda Cardinal and Marie-Joie Brady the Provinces to Run Out of Money in a Decade of Liberal Budgets,’ Policy Options 25/4 (2004): 12–17. 65 See Sarah Fortin’s chapter in this book. 66 Alain Noël, ‘Le principe fédéral, la solidarité et le partenariat,’ in Laforest and Gibbens, Sortir de l’impasse, 270. 67 Ibid. 68 Ibid., 271. 69 Ibid., 280. 70 Bourque and Duchastel, ‘Démocratie et communauté.’ 71 Noël, ‘Le principe fédéral, 286. 72 James Tully, Une étrange multiplicité: le constitutionnalisme à une époque de diversité, translated by Jude Des Chênes (Quebec: Les presses de l’Université de Laval, 1999), 139. 73 Ibid., 140. 74 For a description of the Council of the Federation, see Marc-Antoine Adam, The Creation of the Council of the Federation, Democracy and Federalism Series, no. 1 (Kingston: Institute of Intergovernmental Relations [IIGR], 2005). For a critique of the Council, see André Burelle, ‘Conseil de la fédération: du réflexe de défense à l’affirmation partenariale,’ in A Series of Commentaries on the Council of the Federation, 1–7 (Kingston: IIGR, 2003). 75 See Inroads’ special issue on asymmetrical federalism, esp. Pierre Boyer, ‘Introduction – Asymmetrical Federalism: An Idea Whose Time Has Come?’ Inroads, no. 17 (Summer/Fall 2005): 100–25. See also the series on the same subject on the Website of the IIIGR at Queen’s University, available at www.iigr.ca/browse_publications.php?section=43. 76 Benoît Pelletier, Le fédéralisme asymétrique: une formule gagnante pour tous!, Asymmetry Series, no. 15b (Kingston: IIGR, 2005), and ‘Nécessaire asymétrie,’ La Presse (28 Oct. 2004), A20. 77 Pelletier, Le fédéralisme asymétrique. 78 Sénateur Serge Joyal, La Presse (22 Oct. 2004), A20; Hon. John Roberts, Asymmetrical Federalism: Magic Wand or ‘Bait and Switch?’ Asymmetry Series, no. 14 (Kingston: IIGR, 2005).

15 Towards Postcolonial Federalism? The Challenges of Aboriginal SelfDetermination in the Canadian Context1 martin papillon

What is the place of Aboriginal peoples in relation to the Canadian federation? It has become almost a cliché to underline the significance of the changes in the relationship between the first inhabitants of North America and the Canadian state over recent decades. From the 1969 White Paper, which proposed the abolition of the Indian Act with the intention of making Aboriginal individuals ‘citizens like all Canadians,’ to the recognition of Aboriginal and treaty rights in the 1982 Constitution and the negotiation of modern treaties and self-government agreements, undoubtedly, much has changed. While some speak of paradigmatic change,2 others insist that these recent changes do not fundamentally call into question the colonial heritage and logic of domination that has characterized relations between the Canadian state and Aboriginal peoples.3 To be sure, the slow emergence of self-government institutions throughout the country would seem to indicate a significant transformation of Aboriginal–state relations. Yet, the Indian Act, with its system of administrative guardianship, still constitutes the principal governance mechanism for most First Nations.4 What is more, the troubling socioeconomic situation of many communities reminds us that the colonial heritage still weighs heavily on the lives of Aboriginal peoples and on their relationship with Canadian institutions.5 It is perhaps more appropriate, then, to speak of a period of transition: a period in which fundamental issues of justice, social and economic development, but especially issues related to the nature of the political relationship between Aboriginal peoples and the Canadian state are being played out in the public sphere. Indeed, Aboriginal peoples’ principal claim, beyond greater control over the use of land, is one

406 Martin Papillon

of political freedom.6 Like all national minorities incorporated in larger states, they demand greater control over their collective fate. Aboriginal claims for self-determination are rendered even more legitimate by the fact that they never consented, either explicitly or implicitly, to their integration into the Canadian federation. The goal of this chapter is to highlight the challenges Aboriginal political assertion pose to Canadian federalism. My first line of questioning relates to the capacity of Canadian federal institutions to adapt to the claims of Aboriginal peoples. While the institutions of Canadian federalism may act as a barrier to Aboriginal peoples’ quest for autonomy, the federal principle that brings together concepts of self-governance and shared governance nonetheless offers a promising framework to translate, in institutional terms, the complex political dynamics of Aboriginal self-determination. Second, I carry out an evaluation of recent developments in the relationship between Aboriginal peoples and Canadian federalism. I suggest that, while many aspects of the current dynamic may lead us to conclude that we are still a great distance from a true ‘postcolonial’ federal structure, it is no less true that there have been important changes that deserve our attention. I will underline, in particular, the importance of moving beyond an approach that focuses exclusively on the judicial interpretation of rights and formal treaties in order to fully grasp the present dynamics. Indeed, a number of significant developments are currently taking place in the less grandiose, but equally important realm of everyday governance within Aboriginal communities and nations, and through interactions between Aboriginal, provincial, and federal governments in the design and implementation of public policy. The Federal Principle and Aboriginal Self-Determination Despite the instability of several multinational federations, the past few decades have witnessed the forceful return of federalism as a mechanism for ensuring the peaceful coexistence of a plurality of national groups within a single political entity. In fact, as Alfred Stepan points out, all the multinational democratic societies in existence today are either federations or quasi-federations.7 It is hardly surprising, then, that a form of federative association is often evoked in response to the challenge posed by the coexistence of Aboriginal peoples and societies born out of European colonialism, whether in the Americas or elsewhere in the world. Aboriginal peoples are also not strangers to the

Aboriginal Self-Determination in the Canadian Context  407

federal principle. The Haudenasaunee (Iroquois), the Mi’kmaq and, further west, the Blackfoot, for example, developed forms of federal or confederal political association before the arrival of Europeans in North America.8 That being said, the relationship between federalism and the recognition of Aboriginal peoples’ political autonomy is not so simple. The situation of Aboriginal peoples living within federal regimes, where the principle of divided state authority already exists, such as Australia, the United States, and Canada, is not necessarily more enviable than those of their counterparts within unitary states, such as New Zealand or Sweden. In fact, the Canadian federal system has historically been and continues to a large extent today to be an obstacle to the self-determination of Aboriginal peoples. Several factors contribute to this institutional obstruction. Constraints of the Canadian Federal System First, and this is fundamental in a federal context, the Canadian Constitution does not recognize Aboriginal peoples as constituent political entities. While French and British colonial powers may have maintained diplomatic relations with the indigenous nations populating North America, they were increasingly marginalized within the political sphere over the course of the eighteenth century. Aboriginal peoples were excluded from all negotiations pertaining to the definition of the Canadian political community, its institutions, and mechanisms of representation. Not a single Aboriginal delegate participated in the conferences of Charlottetown and Quebec City in 1864, when the groundwork was laid for what would become the Canadian federation. The only reference made to Aboriginal peoples in the Constitution Act of 1867 is found in Section 91(24), which confirms federal authority over ‘Indians, and Lands reserved for the Indians.’ Aboriginal people were thus reduced to objects of governmental jurisdiction in the constitutive text of contemporary Canadian federalism. Out of this situation emerged a set of constraints that today continue to play against the autonomist aspirations of Aboriginal peoples. The Canadian Constitution, drawing inspiration from the British model of parliamentary sovereignty, leaves little room for the expression of alternative forms of political and legislative authority other than that of the federal and provincial parliaments.9 This model creates an ‘institutional gridlock’ that functions in such a manner as to limit the range of pos-

408 Martin Papillon

sible responses to Aboriginal claims.10 As we will see below, lacking the status of federal partners, Aboriginal organizations and governments are still largely excluded from the diverse mechanisms of intergovernmental relations that are at the core of the Canadian model of executive federalism. Second, and here lies the paradox of the situation of Aboriginal peoples, in a federal context, ‘stateless’ minorities are often more vulnerable to regional interests, which benefit from a more direct link with provincial governments. William Riker, in his critique of federal systems, referred to the danger of the ‘tyranny of small places’ within federations.11 In Canada, Aboriginal peoples often find themselves in a vulnerable situation relative to the interests of the provinces, which hold jurisdiction over public land and natural resources. The latter will naturally seek to facilitate the development of the territory, often overlooking the presence of Aboriginal peoples and showing little concern for their rights. The examples of hydroelectric development and forestry in Quebec, or, for that matter, oil and gas in Alberta, are convincing in this regard. Conflicts between provincial governments and Aboriginal peoples are not unique to Canada. The United States Supreme Court, as early as 1886, referred to the American states as ‘the deadliest enemies’ of American Indian tribes.12 Finally, one last aspect of the difficult relationship between Aboriginal peoples and Canadian federalism deserves to be emphasized. Aboriginal peoples have long been involuntary victims of power struggles between the federal government and the provinces, in particular with respect to the delivery of government services. Paradoxically, the question here is not so much who can exercise authority, but rather, who must do so. For example, the Indian Act, the first version of which was adopted in 1873, is the principal mechanism through which the federal government exercises its constitutional power over ‘Indians’ in accordance with Section 91(24) of the Constitution Act of 1867. For better and for worse, Inuit, Metis, and the vast majority of First Nations peoples living off-reserve were, from the start, excluded from the reach of the Act and from federal programs directed at ‘Status Indians.’ In the meantime, provinces consider services for Aboriginal peoples to be a federal responsibility. Inuit, Metis, and a number of Aboriginal peoples without formal status were thus for a long time largely ignored by the two orders of government, falling into a legal vacuum that continues, today, to have repercussions for the coordination of services and for the quality of life of these populations.13

Aboriginal Self-Determination in the Canadian Context  409

As a result, in addition to their limited legitimacy in the eyes of many Aboriginal nations, the institutions of Canadian federalism contribute to the perpetuation of a legal structure that exacerbates conflicts and reinforces the system of exclusion inherited from the colonial period. Doubts expressed by many Aboriginal leaders as to the capacity of the Canadian federal system to adapt to their autonomist demands can thus easily be explained. At issue here, however, is not federalism itself, but its particular expression within the Canadian historical context. It is in this sense that a number of analysts have invited us to re-think our understanding of federalism beyond existing federations to envision a model of association that would allow us to reconcile Aboriginal peoples’ desire for self-determination with the necessary interdependence between Aboriginal peoples and the broader Canadian society and its institutions. Federalism as a Foundation for a Post-colonial Relationship? The contemporary autonomist demands of Aboriginal peoples follow in the footsteps of the third world liberation movement that marked the twentieth century, in particular after the Second World War. Much like francophones in Quebec, Aboriginal peoples borrowed from the decolonization movement the language of the rights of peoples. Although some continue to refute the moral and historical worth of Aboriginal peoples’ right to self-determination,14 the normative debate tends now to focus more on the significance of the principle and its expression in legal and political terms than on its legitimacy. Deprived of their lands, included without their consent within states whose political and economic structures condemn them to marginality, victims of policies of assimilation and cultural obliteration, Aboriginal peoples seek above all to liberate themselves from a long historical process of ‘internal colonisation.’15 It is for this reason that they claim, and sometimes assert, their right to freely determine their political destinies as distinct peoples.16 Although Aboriginal peoples embrace the language of self-determination, it is important to situate these claims within their context. Given their small size and oft-limited resources, few Aboriginal nations today can aspire to exercise the set of prerogatives associated with state sovereignty. Moreover, as the Supreme Court of Canada underlined in the Delgamuukw decision, ‘we are all here to stay.’17 The demographic, socioeconomic, and geographical reality of Aboriginal peoples calls for a conception of self-determination that takes into account the interde-

410 Martin Papillon

pendence and inseparable destinies of the societies that share the territory of what is now Canada.18 The self-determination of Aboriginal peoples must therefore be understood not only as a search for autonomy, but also as a process of redefinition of the relationship between Aboriginal peoples and the state. Many authors now stress what Iris Marion Young calls the relational dimension of self-determination.19 For Michael Murphy, ‘relational self-determination encompasses a sphere of autonomy for self-determining groups, but also recognizes that relations of complex interdependence place both practical and ethical limitations to autonomy, creating the need for shared or co-operative forms of governance to manage this interdependence in a manner which is both effective and democratic.’20 The need to think of self-determination in relational terms brings us back to federalism. The particular context of Aboriginal peoples, however, invites us to go beyond the classic conception of federalism as a system of government where, for a single community of citizens, we find two levels of government whose powers, defined by the constitution, are mutually exclusive.21 Indeed, the great diversity, small size, and limited resources of Aboriginal nations make it difficult, save under exceptional circumstances, to create provinces or states in the habitual sense, even granting the possibility of a strong asymmetry between federal partners.22 Beyond modern federations, however, there are in fact several ways of translating the federal idea as defined by Daniel Elazar: ‘At the very heart of the principle of federalism lies the idea that free peoples can freely enter into lasting yet limited political association to achieve common ends while protecting their respective integrities […] Federalism is a matrix of decision-making centers combining elements of self-rule and shared rule.’23 As David Hawkes notes, the two dimensions of Aboriginal peoples’ self-determination, namely, the search for a political space of their own and for mechanisms to secure their coexistence with the state, fit particularly well with the federal principle as articulated by Elazar.24 The idea of a ‘federalization’ of the relation between Canada and Aboriginal peoples has been the object of a number of theoretical reflections in the past few years. The best known of these models consists of recognizing Aboriginal governments as a third order of government within the Canadian federation, in keeping with the vision proposed by the Royal Commission on Aboriginal Peoples (RCAP).25 This approach has been criticized however, as it takes for granted the supremacy of the Canadian constitutional order.26 In other words, Aboriginal peoples

Aboriginal Self-Determination in the Canadian Context  411

must negotiate their recognition as autonomous entities within a political order, which, as I discussed above, was largely defined without their consent or involvement. For this reason, other authors suggest an approach that distances itself from the existing federal framework. According to Sakej Henderson, for example, the first alliance treaties concluded between the European powers and Aboriginal peoples did constitute a form of federal association whose foundation should be re-actualized. In his view, the original treaties, which are a part of the Canadian constitutional order, constitute both a recognition of mutual sovereignty and the expression of a will to associate and to share the land.27 This ‘treaty federalism’ was never abolished in his view, and in principle, still coexists with the Canadian federation created by the British North America Act in 1867. We must recognize, then, the coexistence of two types of federal association in Canada: a federalism founded on treaties signed with Aboriginal peoples and a federalism originating in the Constitution Act of 1867, which today is hegemonic. James Tully, in Strange Multiplicity: Constitutionalism in an Age of Diversity, adopts a similar point of view, maintaining that Canada should be conceived as a dual federation in order to reconcile the constitutional narratives of Aboriginal peoples with that of Canada’s majority population.28 In this perspective, each Aboriginal nation should be able to freely negotiate the nature of its association with the Canadian federation, creating not necessarily a third order of government (although this possibility should not be excluded), but a multitude of confederal associations coexisting with the former. The logic is therefore reversed: it is not a matter of negotiating the autonomy of Aboriginal governments, but rather what jurisdictions Aboriginal nations wish to delegate to, or share with, the Canadian state. Contrary to the RCAP model, treaty federalism is premised on the recognition of the presence of a plurality of legal and political orders within the territory of what is now Canada.29 This kind of model has the advantage of opening the door to a conception of the relationship between Aboriginal peoples and Canadian political institutions that: (1) recognizes the historical presence of Aboriginal peoples as selfconstituted polities on the land; (2) does not assume absolute state sovereignty; (3) is grounded on the principles of equality and mutual consent; and (4) leaves open to negotiation the specific institutional configuration of self-rule and shared rule according to the historical, geographical, and sociodemographic reality of various Aboriginal nations.

412 Martin Papillon

A federal association by treaty poses a number of practical challenges, however, notably with regard to representation within common institutions and mechanisms of democratic accountability between distinct political communities, for example.30 Despite its flexibility, this type of association is also not necessarily suitable for all Aboriginal peoples. The Inuit of Nunavut and Nunavik, in northern Quebec, seem to have made the best of models of public governance based on the principle of devolution of powers within the Canadian federation.31 It would be similarly difficult to envision such a structure for the significant Aboriginal population living in urban environments. The goal here is not to settle the question, but to underscore the diversity of approaches that might be envisioned in order to translate into institutional terms the relational dimension of self-determination. Each in its own way, these different theoretical models make it possible to grasp the constitutive elements at the heart of a federal relationship that satisfies the principle of self-determination, namely, the definition, through negotiation between consenting parties, of an association incorporating both a sphere of self-governance and a sphere of shared governance. Current Dynamics in Aboriginal, Federal, Provincial Relations It is clearly impossible to present a complete portrait of all recent legal and political developments related to Aboriginal peoples’ autonomy and to the dynamics of their relationship with the institutions of the Canadian federation. I will therefore restrict the discussion to an overview of certain central elements associated with a relational conception of self-determination. The Contours of Political Autonomy It is certainly in the legal and constitutional arena that the most visible advances with respect to redefining the place of Aboriginal peoples in Canada have occurred over the past thirty years. Faced with resistance from governments when it came to recognizing their political status, Aboriginal organizations have used the language of rights in order to earn a place in the Canadian political universe. This strategy culminated with the recognition of Aboriginal and treaty rights in Section 35(1) of the Constitution Act, 1982. While often considered too vague to constitute a basis for the emergence of a new political relationship,

Aboriginal Self-Determination in the Canadian Context  413

Aboriginal peoples have certainly used Section 35 to limit unilateral federal or provincial actions affecting their traditional land and activities and affirm their political relevance. In many ways, the courts have become forums for Aboriginal peoples to articulate their claims in the public discourse and force the federal and provincial governments to take them into account. Although it has never done so explicitly, many analysts have considered the question of whether the Supreme Court opened the door to recognition of an inherent right to self-government in the context of its decisions on Section 35 of the Constitution Act, 1982, thus indirectly creating a new order of government within the Canadian Constitution. Most are in agreement that this door has been left wide open, but that the interpretation of Aboriginal rights adopted by the Supreme Court runs the risk of creating an emaciated right to self-governance that limits Aboriginal autonomy to traditional activities and does not include central elements of modern governance.32 The Court, until very recently, clearly delineated the contours of the rights recognized in Section 35, including those related to governance, to the exercise of activities, customs, or traditions ‘integral to the distinctive culture’ of Aboriginal peoples.33 Beyond questions of interpretation, we must ask ourselves whether the courts are the appropriate arena in which to define the foundations of a federal relationship. For one, the interpretation of Aboriginal rights by the Supreme Court of Canada is necessarily limited by the parameters of the Canadian Constitution, from which it derives its own legitimacy. Second, the (re)construction of a relationship based on more legitimate and equitable grounds is a political project, which must be the object of negotiations involving all parties. The arbitration of the courts is essential in order to interpret, after the fact, the parameters of the agreement when conflicts arise, but the courts can never replace the political process aimed at negotiating the foundations of the relationship. The federal government and, more and more, the provinces, are taking note of this reality. In 1995 the federal government recognized in a policy statement that the inherent right to self-government should be considered as a right under Section 35 and invited Aboriginal peoples to negotiate the implementation of this right though bilateral (or trilateral when provinces are involved) agreements. But the federal policy established in the same breath a series of conditions for the exercise of the right to self-government.34 It unilaterally defines the areas of jurisdiction that are up for negotiation and those that aren’t. It also speci-

414 Martin Papillon

fies that the exercise of governmental autonomy must be carried out within the limits of the Canadian constitutional framework. In other words, the supremacy of provincial and federal jurisdictions is always presumed. The majority of self-government agreements negotiated up until now within this framework limit Aboriginal governments’ exercise of power to a few areas of local interest without affecting the core of federal and provincial jurisdictions.35 In addition to these formal limits, it must be added that the financing of Aboriginal governments rests, essentially, on the good will of the federal government and the provinces. With few exceptions, Aboriginal nations do not have an autonomous fiscal basis and the provinces have been reluctant to share royalties for natural resource extraction with Aboriginal peoples. Even under the strongest of self-government structures, this fiscal dependency perpetuates the unequal relationship established under the regime of the Indian Act.36 That being said, a number of developments deserve to be highlighted. For example, the creation of the Territory of Nunavut made it possible for the Inuit to choose their institutions of governance – a public government in this case – and to exercise legislative powers equivalent to provinces.37 While the government of Nunavut is largely dependent on fiscal transfers from the federal government, the fact remains that the Inuit control the levers that allow them to define their own priorities in regard to public policy. Another significant development, in Saskatchewan, lies in the proposed creation of a model of autonomy bringing all First Nations together within an integrated system of local, regional, and provincial governments, that would have power over a certain number of areas.38 Other autonomy agreements, for the Nisga’a and the First Nations of the Yukon, for example, have created original models of governance outside the framework of the Indian Act.39 It is still too soon to evaluate the true scope of these developments, but it seems clear that Aboriginal governments, in various forms and exercising a diverse array of legislative authority, are re-establishing themselves as a permanent feature of the political and legal landscape of the Canadian federation. Consolidation of Internal Mechanisms of Governance: Political Capacity and Legitimacy While the negotiation of agreements with federal and provincial authori­ ties is an essential element of self-governance, the development of a

Aboriginal Self-Determination in the Canadian Context  415

true government-to-government relationship relies, to a large extent, on the internal capacity and legitimacy of Aboriginal governments. The challenge these governments face is considerable, given that it involves breaking away from the model of governance ‘from above’ associated with the colonial regime and the Indian Act, and at the same time (re)creating within Aboriginal communities democratic governing structures, sometimes allying traditional practices that are not easily compatible with the requirements of modern government. To that end, one element often neglected in the literature is the practice, more and more common within communities, including those that remain under the authority of the Indian Act, of unilaterally asserting authority through the creation of mechanisms or institutions of governance outside the legal-political sphere of the state. For example, the Mohawks of Kahnawake established their own police force, the Peacekeepers, without government backing. Once their internal legitimacy had been relatively well established, the federal and Quebec governments were, in a sense, forced to recognize this police force with a series of tripartite accords.40 A similar process was used elsewhere in areas such as education and traditional justice, for example. These kinds of practices have a symbolic value at least as important as their actual scope, since they constitute, in effect, a reaffirmation of the self-determining capacity of Aboriginal communities. The strengthening of internal governance can also occur through the negotiation of administrative agreements with governments. As in many other service-oriented policy areas, instead of running programs directly, the federal and provincial governments increasingly engage with Aboriginal organizations and various governance institutions in processes of co-regulation, co-management, and partnerships in the delivery of services. While decentralization in and of itself is not new, a number of government programs developed in the wake of Gathering Strength, the 1998 federal action plan designed in response to the report of the Royal Commission on Aboriginal Peoples, follow this ‘partnership’ approach where Aboriginal organizations, band councils, or local and regional self-government institutions have more leeway in designing their own programs. For example, under the federal Aboriginal Human Resource Development Strategy launched in 1999, instead of imposing a specific type of training program on communities, the federal government funds initiatives developed by Aboriginal governments and organizations related to labour market integration. A number of band councils and other forms of Aboriginal governments

416 Martin Papillon

have thus put in place their own human resources development strategy, whose objectives and content are defined not by Ottawa, but by the communities themselves. These policies, which must be located not only in the context of Aboriginal claims for greater autonomy but also within the larger context of the redefinition of the role of the state inspired by neo-liberal restructuring, have not fundamentally altered the power structures of Aboriginal governance. Administrative decentralization may, in fact, increase the already significant dependency of Aboriginal authorities towards federal and provincial governments since the capacity of the former to deliver services to their communities – something the population is now expecting – is still entirely dependent on the will of the latter. Moreover, this transfer of responsibilities is accompanied by an increased emphasis on accounting and reporting mechanisms, which have become a significant administrative burden for Aboriginal governing institutions. In sum, critics of such decentralization may well be right when they argue that it represents little more than a new way for Canadian governments to maintain a form of ‘control at distance’ on Aboriginal communities and continue the process of assimilation through bureaucratic means.41 That being said, one should not underestimate the long-term political impact of administrative transfers on the role and legitimacy of Aboriginal governing institutions. For one, even if they do not formally transfer any jurisdiction, these agreements considerably increase the relevance of local or nation-based Aboriginal institutions in the daily life of communities. They are, in effect, becoming the sole governmental presence in those communities. Second, despite tight fiscal controls, administrative decentralization leaves a certain degree of leeway for Aboriginal governments in the implementation of programs. In a decentralized governance context, the relation between policy objectives defined at one level and the implementation process at another needs to be relatively loose, as agents responsible for implementation have to adapt programs to their specific context. In addition to the development of policy capacity, this margin of autonomy for Aboriginal governments can thus reinforce their legitimacy as sources of collective decision-making in communities. The experiences of the James Bay Crees and the Inuit of Nunavik who – for almost thirty years now – have been practising a form of administrative autonomy in several sectors, by virtue of the James Bay and Northern Quebec Agreement (JBNQA) and associated laws, is sig-

Aboriginal Self-Determination in the Canadian Context  417

nificant in this sense. In a strict legal sense, the powers delegated to these groups are quite limited, similar to those of municipalities. They have, however, come to develop an expertise and a significant administrative capability that today allow them to exercise, in practice, a nonnegligible form of self-governance in certain areas.42 The consolidation of Cree mechanisms of governance around the Grand Council of the Crees and the Cree Regional Authority has further enabled Crees to develop a capacity for political and policy coordination, which has, in turn, allowed them to establish a stronger, more assertive relationship with governments. The signing of a significant agreement on economic development in Cree territory with the Quebec government in the winter of 2002, to which we will return below, is largely the product of this power relationship. The Inuit of Nunavik, through the administration of public bodies created in the wake of the James Bay Agreement, have similarly acquired an expertise and a political capacity that now allows them to negotiate with Quebec and Ottawa the creation of an autonomous public government in northern Quebec. Aboriginal Participation in Common Mechanisms of Governance in the Canadian Federation Given the oft-limited resources and the small size of Aboriginal communities, even under the most advanced models of self-government, a significant number of policies touching on the interests of Aboriginal communities would, out of necessity, be managed through shared governance mechanisms. As Michael Murphy reminds us, shared governance in the Aboriginal context requires both a form of representation within the institutions of the Canadian federation as well as mechanisms of coordination between Aboriginal, federal, and provincial governments.43 The first dimension of shared governance is both underestimated in the literature on the self-determination of Aboriginal peoples and perceived with a certain suspicion by Aboriginals themselves. For Taiaiake Alfred, for example, participation in the existing institutions of the Canadian federation implies the recognition of Canadian sovereignty over Aboriginal peoples, something many First Nations still object to.44 Others, however, insist on the importance of investing in Canadian institutions in order to transform their practices and render them more sensitive and open to Aboriginal realities.45 As we saw in the first part of this chapter, Canadian federalism is not particularly amenable to the representation of ‘stateless’ minorities.

418 Martin Papillon

There is no institution or mechanism to facilitate the representation of Aboriginal peoples within federal or provincial institutions. A number of proposals aimed at reforming the electoral system so as to assure a greater degree of Aboriginal representation within the federal parliament have been made. For example, the Royal Commission on Aboriginal Peoples proposed the creation of a third chamber within the federal parliament to ensure that the interests of Aboriginal peoples are represented in the political process. Thus far, these proposals have remained on paper only.46 Shared governance does not end with representation within common institutions. In fact, within the Canadian federal system, it rests to a large extent on the development of intergovernmental mechanisms and on the various processes of ‘executive federalism’ through which governments coordinate their policies. In addition to First Ministers Conferences and meetings of sector ministers, executive federalism also includes an important network of councils and bodies functioning at the administrative level. The participation of Aboriginal peoples in Canadian executive federalism occurs principally through pan-Canadian Aboriginal organizations, the major ones being the Assembly of First Nations (AFN), Inuit Tapiriit Kanatami, the Métis National Council, the Congress of Aboriginal Peoples (representing non-status Indians), and the Native Women’s Association of Canada. This participation, however, depends largely on the good will of the federal government. While a number of Aboriginal organizations had a seat at the constitutional table during the negotiations surrounding the Charlottetown Accord, they have since been largely excluded from first ministers’ meetings. The AFN tried in vain to participate in the negotiations for the Social Union Framework Agreement (SUFA), but had to content itself with informal consultations with the federal government and a pledge ‘to collaborate in order to respond to the particular needs and concerns of Aboriginal peoples.’47 Aboriginal organizations have since been participants at an increasing number of inter-ministerial administrative meetings, serving to prepare the way for or ensure the following up of meetings at the summit, but their status in such intergovernmental forums remains ad hoc and, above all, consultative.48 This limited participation only confirms the structural limits of Canadian federalism. On the one hand, Aboriginal organizations such as the AFN are not considered governments and do not exercise any jurisdiction in and of themselves. Their authority and legitimacy in processes of executive federalism is thus likely to remain precarious.

Aboriginal Self-Determination in the Canadian Context  419

On the other hand, the participation of all Aboriginal governments to intergovernmental processes would be unthinkable. In this sense, the place of Aboriginal peoples at the intergovernmental table in the current institutional context is likely to remain limited – the exception to this rule is obviously Nunavut, which, as a territory, participates in all intergovernmental forums. Beyond Canadian Federalism: A New Form of Intergovernmental Relations? The most significant developments with respect to shared governance are, in fact, situated outside the institutions of Canadian federalism, in the sphere of bilateral and trilateral relations that serve to maintain effective coordination between Aboriginal governments and the two orders of government. The emergence of these relations is, in part, a corollary of the negotiation of land claims settlements through which a number of administrative bodies are created to ensure some form of Aboriginal participation in the management of land, resources, and the environment. These ‘co-management’ structures create ‘permanent, institutionalized, relationships between governments and representatives of Aboriginal bodies’ through which Aboriginal authorities can, in some cases, exercise influence on policy developments.49 Often less noticed, however, growing intergovernmental relations are also a corollary of administrative decentralization. Paradoxically, the more responsibilities Aboriginal governments come to exercise, the more important intergovernmental mechanisms become. The negotiation of accords on the transfer of certain administrative responsibilities requires considerable follow-up to negotiate budgets and coordinate polices and programs. For example, in the administration of education, Aboriginal councils or school boards must not only negotiate budgets, but also coordinate with provinces in order to guarantee the recognition of diplomas and ensure that their graduates have access to higher education. Many Aboriginal governments now have an administrative division devoted to intergovernmental relations, just as the federal and provincial ministries now include particular units specialized in the negotiation and observance of agreements with Aboriginal governments. These relations are certainly unequal, in the sense that the federal and provincial governments hold the purse strings and can, as it were, impose their conditions on Aboriginal authorities. In certain cases, however, the latter are able to establish a favourable power relationship, based, in part, on the legal regime created by the recognition of Aboriginal rights

420 Martin Papillon

and the constitutional protection of treaties, but also by the strengthening of their legitimacy within communities and of their administrative and political capacity. In other words, administrative intergovernmental relations can become political spaces in which Aboriginal governing institutions can assert their authority and legitimacy, and transform administrative dynamics into political ones. The negotiation between the James Bay Crees and the government of Quebec of a new relationship agreement, often referred to as the ‘Paix des Braves’ is a good example in this respect. In the context of these negotiations, which followed many years of acrimonious relations surrounding the administration and interpretation of the James Bay and Northern Quebec Agreement, the Cree leaders succeeded at negotiating directly with the highest political rungs of the Quebec government.50 According to Ted Moses, the Grand Chief of the Crees at the time of the negotiations, the parties agreed to move away from strict administrative dynamics and negotiate on the basis of a mutual ‘nation to nation’ recognition, starting from the fact that it was in the Québécois and the Crees’ advantage to be on good terms, given that they shared the same territory.51 While the true outcome of the agreement remains a matter of debate, especially in light of growing opposition in Cree communities, the fact remains that it was a major turning point in the relationship between the Crees and the Quebec government. In exchange for their consent to new hydroelectric development on the JBNQA territory,52 the Crees gained greater responsibilities and fiscal resources for economic and social development and the establishment of a forestry regime that allows for Cree participation in the definition of harvesting plans within their traditional hunting grounds. The agreement also created a permanent liaison committee, aimed at facilitating the coordination and resolution of conflicts between Quebec and the Crees. This agreement demonstrates the growing importance of bilateral and trilateral relations aimed at coordinating and reorganizing not the status of Aboriginal peoples within the federation, but rather, public policies and their implementation. In the case of the Paix des Braves, the focus was on economic development and natural resources management. Elsewhere, the issue might be education or the administration of justice.53 While this may not constitute federal governance, strictly speaking, it certainly reflects a new form of multilevel governance, capable of significantly modifying the relationship between certain Aboriginal nations and the institutions of the Canadian federation.

Aboriginal Self-Determination in the Canadian Context  421

Conclusion: Towards a Quasi-federal Model of Governance? The Paix des Braves is particularly significant, given the context of Quebec–Crees relationships in the aftermath of the 1995 referendum.54 This agreement, however, confirms a tendency observed elsewhere. The Paix des Braves makes no modification to the status of the Crees within the federation, nor does it change the nature of the rights recognized under the James Bay and Northern Quebec Agreement (JBNQA). Legally speaking, the ‘colonial spirit’ of the JBNQA, with its extinguishment clause and its model of limited autonomy, is still the framework of Cree governance.55 Yet, politically, the agreement has the potential to radically change governance dynamics. It confirms the Grand Council of the Crees’ assertion of legitimacy, and provides Cree regional institutions with economic and political tools that go beyond what was intended in the JBNQA. In this sense, the logic of rights-recognition seems, for the time being, relegated to the background, in favour of a more pragmatic approach to administrative and political relationships. This approach favours the strengthening of collaborative mechanisms, ensuring that Aboriginal governments and organizations have a say in the development and implementation of policies, even though this comes at the cost of legitimizing the legal and constitutional status quo. The Paix des Braves is also in line with the logic of partnership and devolution that today dominates the governmental agenda on Aboriginal policy. For both the federal and the provincial governments the objective is now to transfer to Aboriginal governments the management of public policy. These dynamics, again, do not change the legal status of Aboriginal governments, but they nonetheless reinforce their place in the political arena and create a logic of administrative interdependence, which, in practice, both further incorporates Aboriginal institutions into the state apparatus yet also provides greater space for Aboriginal involvement in the development of policies and significantly reshapes the dynamics of intergovernmental relations. The Crees–Quebec agreement also illustrates the increasing role of provinces in the Aboriginal policy arena. While, until recently, the provinces were reluctant to invest in the Aboriginal policy sphere, advances related to Aboriginal rights and the growing stakes associated with Aboriginal socioeconomic conditions have created greater incentive, if not necessity, for a more proactive provincial role. Quebec is not alone in this respect. Alberta, British Columbia, Saskatchewan, and several other provinces have developed their own Aboriginal policies. It is thus

422 Martin Papillon

more and more difficult to speak of a bilateral relationship between ‘the Crown’ or ‘the Canadian state’ (read: the federal government) and Aboriginal peoples. In practice, these relations are now increasingly tripartite. Finally, the Paix des Braves falls within a set of dynamics that favours the development of bilateral and trilateral ‘executive’ structures of shared governance, rather than the participation of Aboriginal peoples in the common institutions of the federation – such as federal parliamentary institutions. Given the lack of flexibility of the main institutions of Canadian federalism, an executive-centred model of shared governance, through co-management bodies and intergovernmental relations, is emerging. In such relations, Aboriginal peoples increasingly interact with the institutions of Canadian federalism through their own governments rather than directly as individuals. It is clear that despite these significant political developments, Aboriginal–state relations in Canada are still far from theoretical models of ‘post-colonial’ federalism briefly discussed in this chapter. That being said, we must emphasize the importance of the current strengthening of the capacity and legitimacy of many Aboriginal governments through practice, rather than through grand constitutional or legal manoeuvres. A less formal, but certainly significant Aboriginal political power is gradually carving out a place for itself within, or perhaps it would be more accurate to say in the orbit of, the institutions of the Canadian federation. This consolidation has brought with it the development of dynamics of governance that could be qualified as quasi-federal. The ramifications of these developments for the place of Aboriginal peoples in relation to the Canadian federation remain to be seen. Notes   1 I would like to acknowledge the translation work of Erica Frederiksen. Some of the arguments defended in this text have also been presented in Martin Papillon, ‘Canadian Federalism and the Emerging Mosaic of Aboriginal Multilevel Governance,’ in Herman Bakvis and Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness and Legitimacy, 2nd ed. (Toronto: Oxford University Press, 2006), 291–313.   2 See, e.g., Sally Weaver, ‘A New Paradigm in Canadian Indian Policy for the 1990s,’ Canadian Ethnic Studies 22/3 (1991): 8–18; Michael Howlett, ‘Policy Paradigm and Policy Change: Lessons from the Old and New Canadian

Aboriginal Self-Determination in the Canadian Context  423 Policies towards Aboriginal Peoples,’ Policy Studies Journal 22/4 (1994): 631–49.   3 Kiera Ladner and Michael Orsini, ‘The Persistence of Paradigm Paralysis: The First Nations Governance Act as the Continuation of Colonial Policy,’ in Michael Murphy, ed., Canada, the State of the Federation 2003: Reconfiguring Aboriginal–State Relations (Kingston: Institute of Intergovernmental Relations [IIGR], 2005); Taiaiake. G. Alfred, Peace, Power and Righteousness: An Indigenous Manifesto (Don Mills: Oxford University Press, 1998); Joyce Green, ‘Self-Determination, Citizenship and Federalism: Indigenous and Canadian Palimpsest,’ in Murphy, Canada … 2003, 329–54.   4 Following Section 35 of the Constitution Act, 1982, there are three distinct groups within Canada’s Aboriginal population: First Nations, still sometimes referred to as ‘Indians,’ Inuit, and Metis. Space is insufficient here to render justice to the historical and cultural differences between those groups, as well as their distinct relationship with the state, but I make the distinction when relevant. ‘Aboriginal’ rather than ‘Indigenous’ peoples is commonly used in the Canadian context. I use both interchangeably in this text.   5 A report of the now defunct United Nations Human Rights Committee reminded us that while Canada was ranked seventh on the U.N. Human Development Index, Aboriginal peoples in Canada would rank 48 out of 174 countries. See http://www.cbc.ca/story/canada/national/2005/04/11/UNNatives-050411.html.   6 See James Tully, ‘The Struggles of Indigenous Peoples for and of Freedom,’ in Duncan Ivison, Paul Patton, and Will Sanders, eds., Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2001), 36–59.   7 Alfred Stepan, ‘Federalism and Democracy: Beyond the U.S. Model,’ Journal of Democracy 10/4 (1999): 19–34.   8 Robert Williams provides a captivating portrait of various political structures developed by Indigenous peoples in North America prior to and during European colonization; see his Linking Arms Together: American Indian Treaty Vision, 1600–1800 (Oxford: Oxford University Press, 1997).   9 According to the often quoted decision of the Judicial Committee of the Privy Council, ‘whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act,’ A.-G. Ontario v. A.-G. Canada (1912) A.C. 571. 10 Anothony J. Long, ‘Federalism and Ethnic Self-Determination: Native Indians in Canada,’ Journal of Commonwealth and Comparative Politics 29/2 (1991): 192–211.

424 Martin Papillon 11 William Riker, Federalism: Origin, Operation, Significance (Boston: Little, Brown, 1964). 12 In United States v. Kagma 118 U.S. 375 (1886). A similar situation has often been noted in the Australian context, where states rather than the Commonwealth government had exclusive jurisdiction on Aboriginal peoples until recently. See Nicolas Peterson and Will Sanders, Citizenship and Indigenous Australia: Changing Conceptions and Possibilities (Cambridge: Cambridge University Press, 1998), 7. 13 Other dispositions of the act, notably Section 88, which states that pro­vin­cial laws of general interest are applicable on reserves, further complicate the jurisdictional portrait. For a detailed discussion of the various ‘grey zones’ between federal and provincial jurisdictions in relation to Aboriginal peoples, see among others Anthony J. Long and Menno Bolt, Governments in Conflict? Provinces and Indian Nations in Canada (Toronto: University of Toronto Press, 1988); Rhada Jhappan, ‘The Federal– Provincial Power-Grid and Aboriginal Self-Government,’ in François Rocher and Miriam Smith, eds., New Trends in Canadian Federalism (Petreborough: Broadview Press, 1995), 11–85. 14 Tom Flanagan, First Nations? Second Thoughts (Montreal: McGill-Queen’s University Press, 2000). 15 Tully, ‘Struggles of Indigenous Peoples,’ 37. 16 There is not enough space here to discuss in detail the normative foundations of Aboriginal claims to self-determination. See in addition to Tully, ibid., Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001); and Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (New York: Oxford University Press, 2001), chapter 5. 17 Delgamuukw v. Britiish Columbia, (1997) 3 R.C.S. 1010, par. 186. 18 See John Borrows, ‘Landed Citizenship: Narratives of Aboriginal Political Participation,’ in Will Kymlicka and Wayne Norman, eds., Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000), 326–44. 19 Iris Marion Young, ‘Self-Determination as Non-domination: Ideas Applied to Palestine/Israel,’ Ethnicities 5/2 (2005): 121–45. 20 Michael Murphy, ‘Relational Self-Determination and Federal Reform,’ in Murphy, Canada … 2003, 3–35, at 10. 21 See Ronald Watts, Comparing Federal Systems in the 1990s, 2nd ed. (Kingston: IIGR, 2002). 22 Nunavut is obviously an exception here. 23 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987), 5.

Aboriginal Self-Determination in the Canadian Context  425 24 David Hawkes, ‘Indigenous Peoples: Self-Government and Intergovernmental Relations,’ International Social Science Journal 167/1 (2001): 153–61. 25 Royal Commission on Aboriginal Peoples (RCAP), Final Report, vol. 2 (Ottawa: Communications Group, 1996). 26 Kiera Ladner, ‘Negotiated Inferiority: The Royal Commission on Aboriginal Peoples’ Vision of a Renewed Relationship,’ American Review of Canadian Studies 31/1 (2001): 241–64. 27 J. Sakej Henderson, ‘Empowering Treaty Federalism,’ Saskachewan Law Review 58/2 (1994): 271–315. 28 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). 29 For a stimulating discussion of legal pluralism as a foundation for Aboriginal–state relations, see in addition to Macklem, Indigenous Difference, André Lajoie, Jean-Maurice Brisson, Sylvain Normand, Alain Bissonnete, eds., Le statut juridique des peuples autochtones au Québec et le pluralisme (Montreal: Yvon Blais, 1996). 30 For a more detailed critique, see Alan Cairns, First Nations and the Canadian State: In Search of Coexistence (Kingston: IIGR, 2005). See also Kymlicka, Politics in the Vernacular, 110. 31 See on this the final report of the Commission on Nunavik, Let Us Share: Mapping the Road towards a Government for Nunavik (Quebec: Commission Nunavik, 2001). 32 See Michael Asch, ‘From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution,’ Canadian Review of Law and Society 17/2 (2002): 23–39. 33 R. v. Van der Peet (1996) 2 S.C.R. 507. In the 1996 Pamajewon case, the Court specified that the right to self-government, if it exists, must be evaluated on the same grounds as other Aboriginal rights. See R. v. Pamajewon (1996) 2 S.C.R. 821, 20. This interpretation has since been challenged, notably by Justice Binnie in an obiter dictum that raises the possibility of an autonomy based on the principle of shared sovereignty. See Mitchell v. M.R.N. (2001) 1 S.C.R. 911, 976. 34 See Canada, Department of Indian Affairs and Northern Development (DIAND), Aboriginal Self-Government: The Government of Canada’s Approach to the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Public Works and Government Services, 1995). 35 The Nisga’a in British Columbia, as well as Yukon First Nations, have negotiated agreements that include paramount legislative authority over the management of community lands, citizenship, and local matters. However, the agreements include important limitations on Aboriginal author-

426 Martin Papillon ity. The Nisga’a government, e.g., cannot make laws that run contrary to the general interests of the federal and provincial governments, and must operate within the framework of the Charter of Rights and Freedoms. 36 See Michael Prince and Frances Abele ‘Paying for Self-Determination: Aboriginal Peoples, Self-Government and Fiscal Relations in Canada,’ in Murphy, Canada … 2003, 237–60. 37 See Jack Hicks and Graham White, ‘Nunavut: Inuit Self-Determination through a Land Claim and Public Government?’ in Keith B. Brownsey and Michael H. Howlett, eds., The Provincial State in Canada (Peterborough: Broadview Press, 2001), 389–439. 38 At the time of writing, negotiations between the Saskatchewan government, the federal government, and Saskatchewan First Nations were suspended indefinitely. 39 For a brief overview of some of the existing models, see Michael Murphy and Helena Catt, Sub-state Nationalism: A Comparative Analysis of Institutional Design (London: Routledge, 2002), 53–107. 40 The police force was first created in the late 1960s. A number of agreements with Quebec and Ottawa have confirmed its existence since, including a 1995 tripartite agreement defining its jurisdiction and funding. 41 See, e.g., Dan Neu and Robert Therrien, Accounting for Genocide: Canada’s Bureaucratic Assault on Aboriginal People (London: Zed Press, 2003). 42 The Grand Council of the Crees and the Cree Regional Authority together received more than $140 million in federal and provincial transfers in 2004, for a population of 16,000 divided among nine communities. To this amount, one must add the budgets of the Cree School Board and other regional and local bodies controlled by the Crees. 43 Murphy, ‘Relational Self-Determination,’ 17–22. 44 Alfred, Peace, Power, Righteousness, 110–11. 45 See, e.g., Borrows, ‘Landed Citizenship.’ 46 The Royal Commission on Electoral Reform and Party Financing (RCER) also proposed the creation of special Aboriginal ridings to enhance Aboriginal representation in the House of Commons. Such a reform was also part of the Charlottetown Accord. See Tim Schouls, ‘Aboriginal Peoples and Electoral Reform in Canada: Differentiated Representation versus Voter Equality,’ Canadian Journal of Political Science 29/4 (1996), 729–48. 47 Gurson Dacks, ‘The Social Union Framework Agreement and the Role of Aboriginal Peoples in Canadian Federalism,’ American Review of Canadian Studies 31/3 (2001): 301–15. 48 The major Aboriginal organizations participated, e.g., in a First Ministers Meeting on Aboriginal Social and Economic Development, in Kelowna,

Aboriginal Self-Determination in the Canadian Context  427 B.C., in November 2005. The intergovernmental agreement signed at that meeting was simply dismissed a few months later by the newly elected Conservative federal government. For more details on the agreement, see http://www.scics.gc.ca/cinfo05/800044004_e.pdf. 49 Colin Scott, ‘Co-Management and the Politics of Aboriginal Consent to Resource Development,’ in Murphy, Reconfiguring Aboriginal–State Relations, 133. 50 Negotiations were coordinated directly from the premier’s office. 51 Ted Moses, ‘Comments on the Signing of the Agreement in Principle, Quebec, October 23, 2001’ (Montreal: Archives of the Grand Council of the Crees, 2001). 52 Creating a political precedent, the Agreement in Principle makes it increasingly difficult, if not impossible, for the Quebec government to engage in future hydroelectric development without explicit Cree consent. More­ over, Quebec will pay $3.5 billion in compensation in addition to certain amounts indexed according to revenues gained from natural resources extraction on the territory. It is the first time that the Quebec government has agreed to a form of revenue sharing with Aboriginal peoples on natural resources extraction. As part of the agreement, the Crees also abandoned a series of legal actions against Quebec. The agreement concerning a new relationship between the Government of Quebec and the Crees of Quebec is available at www.autochtones.gouv.qc.ca/relations_autochtones/ententes/cris/ententes_cris_en.htm. 53 In 1997 the Mi’kmaq, the federal government, and the Province of Nova Scotia negotiated an agreement for the exercise of ‘self-government’ in the area of education. Similarly, an agreement between the federal government, British Columbia, and First Nations in that province towards a legislative transfer of jurisdiction in education to the latter was negotiated in 2006. 54 The Crees were particularly active in challenging the legitimacy of Quebec’s assumption that Aboriginal peoples and their traditional lands could be forcibly included in a sovereign Quebec. See Grand Council of the Crees (Eeyou Istchee), Never without Consent: James Bay Crees’ Stand against Forcible Inclusion into an Independent Quebec (Toronto: ECW Press, 1998). 55 Renée Dupuis, ‘Un accord signé au 20e siècle dans l’esprit de la politique britannique coloniale du 18e siècle,’ in Alain-G Gagnon and Guy Rocher, eds., Regards sur la Convention de la Baie-James et du Nord québécois (Montreal: Québec Amérique, 2002).

16 Managing Diversity in Federal States: Conceptual Lenses and Comparative Perspectives michael burgess

The New World of Difference and Diversity In the first decade of the new millennium we have entered a new world of difference and diversity. The end of the Cold War and the global implications posed by the realities of the post–9/11 era have meant that the contemporary world has only just woken up to a new age of danger and uncertainty unprecedented in its ubiquity. It is an unstable cocktail of possibilities and probabilities. But these dangers and uncertainties are not confined to military and security definitions of reality, nor are they necessarily to do with threats of terrorism, drug trafficking, AIDS, and illegal immigration. Instead, they are rooted in social realities that have always been immanent in the modern state but which have often lain either dormant or passive for many years. The new millennium has coincided with the unleashing of powerful forces of culturalideological differentiation that have acquired a dramatic political salience across the world and can no longer be contemptuously ignored, suppressed, or violently eradicated. From Indonesia and Sri Lanka to Nigeria and the Sudan, from Cyprus and Russia to Iraq and Lebanon we are witness to the politics of identity: the struggle for new forms of self-definition, tolerance, and civil and human rights and freedoms. We have entered the new era of constitutional and political minoritarianism.1 Turkish Cypriots in Cyprus, Tamils in Sri Lanka, Chechens in Russia, Kurds in Iraq, Darfur in the Sudan, and many other minority identities have formally joined the chorus of voices clamouring for official recognition and formal accommodation in the polity. Today we are confronted by an increasing number of states whose societies display all the indelible characteristics of multiculturalism,

Managing Diversity in Federal States  429

multilingualism, and multinationalism. Many of these contemporary trends and developments are not novel; they have been evident for over a decade and some for much longer. But this imperative of social differentiation has recently been accelerated and accentuated in certain parts of the world. Its contemporary political significance has been underlined by the widespread media coverage that has successfully linked it to Western values, concerns, and preconceptions of conflict management. Arising out of this new world of difference and diversity has been both the intellectual and practical political impetus to address this remarkable concatenation of events, trends, and developments so that new questions are posed and old ones reformulated in new circumstances. One question that has emerged and is quite striking in this context is the following question: What has changed about the world of states that has served to increase the contemporary significance of the federal idea? A combination of the following four reasons, which are interrelated in a complex fashion, offer us some clues towards an explanation: • A reassertion of the politics of difference and self-determination, especially in central and Eastern Europe and increasingly in the states of the Middle East, for example, the continuing efforts to address the Israeli-Palestinian conflict. • A new international emphasis upon the legitimacy and recognition of social differentiation and heterogeneity, even within Islam, that suggests a need for constitutional and political accommodation (e.g., the case of the Sunni and Shiite Muslims in Iraq). • The recognition of human rights and the morality of United Nations humanitarian intervention in the internal affairs of independent sovereign states, especially those deemed to be ‘failed’ states. This includes the collective rights of whole communities (e.g., the case of Dafur in the Sudan and the self-determination of Kosovo). • The evidence of new democratization processes, partly triggered by the U.S. invasion of Iraq, in the Middle East (e.g., Lebanon, Egypt, and Saudi Arabia). These discernible contemporary trends and developments prompt those of us interested in the practical relevance of federalism to the world today to reflect upon this new political recognition of difference, diversity, and democratization. It also impels us once again to think carefully about the nature of conflict, diversity, and the sort of unity

430 Michael Burgess

that can be forged from what are usually unpromising circumstances. Consequently, there is a need to rethink and reassess some of our basic conceptual categories in the light of comparative perspectives. Diversity and Conflict I want to begin this short comparative survey of diversity in federations by contrasting it with conflict because it is often confused with this word in the political discourse of federalism and federation.2 For some observers, the more diversity that exists in polities the more conflict will automatically ensue. On this reckoning, federal states are inherently more prone to conflict, the logical conclusion being that they spend most of their time in constant pursuit of a consent that is frequently elusive. It is important therefore to distinguish between these two distinct concepts at the outset to avoid misunderstanding the important theoretical and empirical implications that they both have for the study of comparative federalism and federation. Let us start by defining and clarifying precisely what we mean by these two terms. By diversity I refer to specific forms and types that pertain to federalism taken as an empirical reality. This means that political science and political scientists can work only with what exists as social reality having political salience. It is for politicians to use politics to change social reality. In Exploring Federalism (1987), Daniel Elazar referred to diversity in like manner as ‘the existence of politically meaningful diversity’ and expanded on it in unequivocal terms: ‘Diversity is manifested through nationality or ethnic, religious, ideological, social and interest factors that may or may not gain political expression.’ Consequently, federal unity was ‘not only comfortable with the political expression of diversity but is from its roots a means to accommodate diversity as a legitimate element in the polity.’3 Federalism, then, is itself a value concept that incorporates within it certain assumptions, values, and beliefs about the nature of difference and diversity. It is something that not only tolerates these things in a passive sense but also, in prescribing their accommodation in federation, desires actively to celebrate, nourish, and cherish them. This is precisely what Charles Taylor meant when he referred to Quebec’s place in Canada as being part of the raison d’être of the federation and part – an integral part – of what it means to be Canadian. Conflict is inherent in the nature of politics itself. However, we have to make it clear that it has many manifestations. In the context of this short chapter, conflict is the result or at least the by-product of difference and diversity. It is also something that we must take as non-violent

Managing Diversity in Federal States  431

for the simple reason that violence, coercion, and a resort to weapons signals the breakdown of the political process, of politics itself. Consequently, the sort of conflict that we are dealing with here is not the negative phenomenon implied in the opening remarks above, but rather quite the reverse. It is actually a positive, even virtuous, symptom of a healthy polity that can first recognize and second seek to address the difficult cultural-ideological challenges posed by different forms of diversity having political salience. Conflict as the product of diversity therefore is a perfectly legitimate – indeed integral – part of human behaviour, association, and organization. This, then, clarifies our position in this chapter and enables us to avoid unthinking assumptions and preconceptions about the relationship between diversity and conflict. They are both inherent in the polity: diversity and conflict are part of social reality. But several questions arise from the way that we have presented the relationship between diversity and conflict. Clearly, there are many different kinds of diversities and legitimate non-violent conflicts. Examples of these can be broadly classified for our purposes into socioeconomic and culturalideological categories. In practice they obviously overlap and intermingle, but for the sake of social science analysis they can conveniently be separated into two distinct forms. The former category refers to public policy issues usually concerning resource questions to do with allocation, distribution, and redistribution while the latter category embraces more visceral, deep-seated, and ingrained phenomena that derive from questions of identity and self-definition. Issues rooted in identity politics, it should hardly surprise us, are usually (but not always) more difficult and challenging for the polity precisely because they are inherently less bargainable. It is much easier for politics to trade off resource issues in terms of socioeconomic values than it is to compromise about issues surrounding questions of identity that can often be construed as a zero-sum equation. This short introduction brings us conveniently to what lies at the very heart of what it means to be federal. What It Means to Be Federal To explain what it means to be federal, three words follow logically in the following sequence: preconception, predisposition, and prescription. Preconception leads to predisposition and this, in turn, corresponds in political practice to prescription. Let us probe a little further to see where this logic leads us. The federal polity is founded on certain shared assumptions, values, beliefs, and interests that togeth-

432 Michael Burgess

er presuppose the politics of recognition, cooperation, compromise, and accommodation. This is because the polity is rooted in notions of human dignity, toleration, respect, reciprocity, and consent. And since the federal idea is predicated upon difference and diversity, as we have already observed above, its very conception presupposes a particular orientation in politics. This orientation, it follows logically, must be construed as a predisposition to champion a particular idea of the state and society. Whether this predisposition leads to a fully fledged federation, one of many varieties of federal-type arrangements, or mere devolution is determined largely by historical specificity and political circumstances, but the idea can be acted on and has practical consequences. It is, in short, a prescription, a recommendation, a normative empirical approach to managing conflict in societies where there are pronounced levels of difference and diversity having political salience. Before we reflect in more detail upon what the theoretical and practical implications of this essentially normative predicament might mean for being federal, let us consider for a moment the question of putative federal societies. This was a concept first introduced into the conceptual and theoretical debate about federalism as far back as 1952 by William Livingston in his famous seminal article entitled ‘A Note on the Nature of Federalism.’4 Today it is important to note that shorthand expressions of heterogeneity and homogeneity, while useful for analytical purposes, can also serve to oversimplify and sometimes even mislead us into making judgments and assertions about federalism and federation that are erroneous. For example, the common claim in the mainstream literature that a particular society is ‘socially heterogeneous’ might be perfectly accurate and defensible in terms of its pronounced multicultural, multiethnic, multilingual, and multinational composition that might, on the face of it, require a tangible institutional federal response, but there is often a hidden or unspoken assumption that the society that is purportedly ‘socially homogeneous’ – in other words, its opposite – somehow does not have the same federal imperative. In other words, the familiar juxtaposition of the society that is socially heterogeneous with the society that is socially homogeneous has a tendency to lure us down a pathway that is tempting but frankly misleading. It is to assume, for example, that while countries like Belgium, Switzerland, Canada, India, and Malaysia obviously require a federal prescription for their palpable social heterogeneity, a similar federal imperative is lacking in countries like Australia, Austria, and Germany by virtue of the absence of the sort

Managing Diversity in Federal States  433

of cultural-ideological diversities identified above. This is why these federations constitute something of a puzzle for some scholars and why others have often questioned their federal credentials. This is a dangerous assumption to make for the simple reason that it both overstates and misunderstands the nature of social heterogeneity while it correspondingly understates and misconstrues the nature, meaning, and political significance of social homogeneity. I think that this is because of an unthinking assumption in the literature about the nature of social conflict itself. There is a natural predisposition to assume that certain cultural-ideological forms of social conflict, such as sub-state nationalism, religious expression, and linguistic differences, are much more visceral, divisive, and ultimately lead to action than largely socioeconomic conflicts, which are usually driven by public policies that are shaped and determined by the changing political economy. In a nutshell, the former category embodies a range of cultural-ideological diversities that are much more readily capable of generating a well-defined constitutional and political discourse and mobilizing mass publics than the latter category because they are grounded in identity questions. In fact, it is perfectly possible for societies that are labelled ‘socially homogeneous,’ where the nature of diversity is presumed to be largely socioeconomic, to be federal in a different sense than it is for more culturally-divided federations. Leaving aside the pertinent questions of territoriality and historical specificity for a moment, it is incumbent upon us to emphasize here the different forms that diversity assumes in these sorts of federations. Social homogeneity does not mean the complete absence of social cleavages having political salience. Germany, for example, is much more complex than simplistic labels of social homogeneity would have us believe. With a total population of 82.6 million people, it is the largest member-state of the European Union (EU), but approximately 7.3 million of these people originate from countries outside of Germany, a figure that corresponds to roughly 9 per cent of the total population. This certainly suggests diversity, a diversity that is strengthened by increasing economic migrants and growing ethnic minorities together with sixteen Laender (constituent state units) having widely differing local traditions and dialects. Consequently, the impression of social homogeneity conveyed in a federation that is certainly linguistically homogeneous can be misleading. Significant differences, identities, and interests still permeate the societies and economies of individual federations sufficiently well enough for them successfully to sustain constituent units with territorially

434 Michael Burgess

grouped interests, values, beliefs, customs, and traditions that have endured – and to have had a lasting political significance expressed in many ways. To be federal, then, is not to restrict the meaning to one particular type of social cleavage or group of identities. It is one thing to suggest that a particular constellation of cultural-ideological cleavages lends itself to the federal prescription; it is quite another to imply that the absence of these societal characteristics renders varieties of the federal idea either inappropriate or redundant. Territoriality and the Management of Diversity In recent times, sufficient research has been conducted into the broad question of spatial concepts in politics for us to be able to engage the issue of territoriality in federalism and federation with a justifiable degree of self-confidence. We certainly know that both the demographic composition and the spatial distribution of the population in any country have colossal political implications for state-society relations. In federations they have a special resonance precisely because of the nature of the state. Since a federation is ipso facto a particular kind of state founded on the formal structural and institutional recognition of diversity, the spatial distribution of different kinds of identities and interests has a direct bearing on its operation. Institutional design is crucial to how well or how badly the federation works and both the territorial and non-territorial (functional) distribution of different identities and interests are linked to fundamental questions of representation, the definition and recognition of minorities, political accountability, legitimacy, and ultimately justice and stability. Consequently, the question of territoriality and functionality must be factored into any analysis dealing with the management of diversity in federal states. How are distinct collective identities distributed in the polity? How are minorities defined, who defines them, where are they located, and what institutional provisions are made for minority voices to be heard? How do recognized minorities accommodate the concerns of their own minorities? How do federations process the concerns of non-territorial, functional demands and pressures, such as the politics of gender, disabilities, multicultural groups, and linguistic communities? In some cases it is probably accurate to argue that these issues have nothing to do with being federal. Some of these issues are characteristic of contemporary politics in almost every modern polity and can

Managing Diversity in Federal States  435

be processed by using either traditional decision-making mechanisms and devices associated with decentralization, administrative de-concentration and legal processes or consociational techniques, or both. The point is that the way that politically salient diversities are territorially distributed, scattered, or clustered matters. In reality, of course, diversities overlap and intermingle so that a particular constellation of cleavage patterns can have an impact in the federation that is either cross-cutting and serves to dampen down conflict (as in Switzerland) or reinforcing and acts in a divisive manner that serves to polarize conflict (as in Belgium). Territoriality matters in the European Union largely because of the nature of European integration. Because the EU has been built largely by national state governments, the territorial basis of politics has been preserved and its imprint carried over into the hybrid multinational, multilingual, multicultural, multiethnic federal polity. There are, of course, conspicuous non-territorial institutional and policy dimensions to the EU polity – such as the supranational status, role, and impact of the European Commission, the European Court of Justice, the European Parliament, and many examples of transnational interest group activities – but it remains the case that the public policy interface between national governments and the EU’s central institutions yields a composite body of EU policies, legislation, and law that, while it transcends the level of the territorial national state, is ultimately territorial in the extent to which it applies only to the member-states and citizens who reside in the current Europe of the twenty-seven. The EU still has legal boundaries that mark external frontiers that are territorial to which the outsiders Croatia, Ukraine, Moldova, Georgia, and Turkey can still testify. Territoriality, then, is a huge subject with huge implications for managing diversity in federal states. It spills over into many other areas of enquiry, including the familiar subjects of representation, participation, political parties, interest groups, and the complexities of asymmetry. Territoriality remains, however, the preponderant basis for the management of diversity in federal states. It is also the basis of power relations in the territorial state. Power and the Management of Diversity If we acknowledge that there are two fundamental types of diversity in federal states, namely, those of an original type that served to create and shape the federation and those that have developed subsequent to

436 Michael Burgess

its creation as the federation itself has changed and evolved, it is possible to relate them to the notion of power and power relationships. Clearly if, as Taylor suggests, it was part of the primary purpose of Canada to preserve and promote the distinct identity and culture of Quebec, then we can understand why – given either the failure or the refusal of Ottawa to do so – successive provincial governments in Quebec eventually sought to take control of their own destiny and harness the vast potential of constituent state power resources (in the context of the existing federal constitutional order) to nationalism in pursuit of autonomy and self-determination within Canada. Consequently, if being federal means the recognition and accommodation of diversity, this implies some kind of role for power and the mobilization of power resources in the state that can facilitate consensus about what diversity means and which particular forms of diversity are judged to be acceptable and tolerable. Put simply, the question arises as to who defines diversity and what are the choices that are made available on the public policy agenda? To be accepted as authentic today, federations must be, or closely approximate, liberal democratic constitutional capitalist states with limited government based on popular consent and the rule of law. This is because the credentials of liberal democracy and capitalism are now widely construed as interdependent. This constitutional, political, economic, and legal context is crucially important for our understanding and appreciation of how diversity is defined and what kinds of diversity are deemed legitimate. The answer is not simple and straightforward because it is complicated by the irresistible combination of capitalist economic imperatives that seek capital accumulation and profit in conjunction with liberal democratic political freedoms that champion individual liberty and autonomy (and increasingly security). Definitions of diversity therefore must satisfy these dual imperatives. The particular diversity expressed by Quebec in Canada is interesting from this perspective because the Quiet Revolution of the 1960s not only enhanced the identity of individual Quebecois and strengthened the collective identity of the nation as a whole, but it also assisted towards large-scale capital accumulation via public and private investment, increased profits and enterprise, better education, diversity of employment, more research, enhanced training, and greater technological development that led to it being described as Quebec Inc., a successful economic model for the rest of Canada. This economic model dovetailed effectively with, and was part of, the national project

Managing Diversity in Federal States  437

designed to combat the increasing peripheralization of the provincial economy in the changing political economy of North America.5 The political economy literature is particularly apposite in this respect. In Canada the role of dominant economic interests appears to have been critical in shaping the balance of power between Ottawa and the provinces because of the existence of a largely resource-based economy coupled with provincial jurisdiction over the resources themselves. Put simply, certain organized economic interests have managed to strengthen the provincial state vis-à-vis Ottawa in order to benefit from the resulting resource revenues and capital accumulation. This reflected changes in the structure of the national political economy and promoted decentralist trends in the Canadian federation since important vested interests no longer needed a strong federal government. As Garth Stevenson put it, corporate capitalist groups ensured that economic conflict became institutionalized as a federal–provincial conflict, the implication being that both centralizing and decentralizing trends in federal states can be construed as a function of the national political economy.6 Put another way, this strongly suggests that the federalism in federation can be construed in terms of interests, benefits, and beneficiaries. Both diversity and conflict can therefore be viewed narrowly in terms of power, power resources, and power relationships in the capitalist federal state. Unity and Diversity in Federal States Managing diversity and regulating conflict in federal states appear to go hand in hand in the pursuit of unity. But what do we mean by federal unity? What sort of unity is implied in this statement? Elazar reminded us that unity and diversity are not opposites: ‘unity should be contrasted with disunity and diversity with homogeneity, emphasising the political dimensions and implications of each.’7 He also distinguished between what he called ‘consolidated unity’ and ‘federal unity,’ the former referring to polities that sought either to ‘depoliticize or carefully limit the political effects of diversity, relegating manifestations of diversity to other spheres’ and the latter justifying its very existence to accommodate and legitimize diversity.8 But what does this tell us about federations like India and Nigeria that have sought to manage diversity by defusing it in the creation of new territorial units that are linguistically, communally, and culturally homogeneous? Are these examples of federal unity or consolidated unity?

438 Michael Burgess

As far as it goes, Elazar’s distinction is defensible. However, it is also important once again to confront the limits of this kind of unity. One of the greatest challenges to federal democracy today is to try to persuade individual citizens who think largely in terms of their particular ethnic, tribal, or linguistic identity to step outside of references provided solely by their collective cultural self and connect directly with their larger national and/or supranational public spaces. Of course, the question arises as to whether or not all federal systems actually operate in this way. Do the structures, institutions, and procedures that have been put in place to accommodate diversity work in practice so that different identities can effectively determine themselves? Elazar suggests, wrongly in my view, that Austria and Germany did not reflect the existence of politically meaningful diversity and that their federal systems constantly confronted ‘consolidationist pressures based upon homogeneity-related arguments.’9 This argument could equally refer to Quebec in Canada. Consequently, there might be some legitimate justification for the distinction between federal principles and arrangements that have been used principally to create and maintain sufficient unity where the state’s very survival might be in doubt (Elazar refers to Canada and Belgium) and those that have been used principally to preserve and promote a high degree of diversity (here he refers to Switzerland) where the state itself is not threatened. However, the most difficult question to deal with is how far federal values are successfully sustained in federal systems. When looking at a particular federal state therefore we might put it thus: how federal is the federation? Once again, this question can be answered only by reference to context and the point of departure, that is, historical specificity. Conclusion: Revisiting the Past to Explain the Present We are left with more questions than answers. Managing diversity in federal states means that perforce we must revisit the past in order to explain and understand the present. This is precisely because we are confounded by ambiguity. Federal values imply that we must promote both unity and diversity simultaneously, but it is unclear what the limits of these are. As Elazar conceded, ‘the question remains open as to what kinds or combinations of diversity are compatible with federal unity and which ones are not.’10 It would seem that we are compelled to utilize the historical approach to help us to understand how and why certain kinds of diversities evolve as they do. This leads me to conclude

Managing Diversity in Federal States  439

that part of the research agenda in comparative federal studies should look anew not only at the origins but also at the formation of federations. We need to understand more clearly than we do now precisely why and how federations have been formed in the past. Put simply, we need more detailed comparative historical case studies. Only these will enable us to detect, discern, assess, and reassess important historical variables that might have some theoretical significance in the sense of recurring patterns of behaviour, variables that could be construed as circumstantial causation informed by historical interpretation.11 This is admittedly a well-trod area of historical enquiry, but it is, I believe, a task that requires the renewed attention of political scientists. The legacy of William Riker survives as a frame of reference that continues to act as a ball and chain around our conceptual apparatus for explaining unity and diversity in federations. Indeed, on close inspection, it is quite surprising how far comparative federal studies still rely so heavily on the work of Riker, whose standard works of 1964 and 1975 – although empirically flawed and analytically deficient (even in their day) – continue to exert an unwarranted intellectual influence on contemporary writings on federalism despite their superficial and erroneous historical assumptions and assertions.12 While Riker’s basic theoretical propositions about the notion of the political bargain remain largely defensible, his comparative empirical work cries out for radical surgery in the shape of historical reinterpretation and reappraisal. Federations certainly move and change, as Preston King once observed, and we cannot expect to understand and explain contemporary unity and diversity solely from the standpoint of historical events and trends. However, we cannot completely ignore historical perspectives and interpretations, nor can we take them as given in the often peremptory way that Riker presented them. Naturally, the original diversities that formed part of the circumstances deemed responsible for the creation of a particular federation evolve and may even change in character but contemporary diversities nonetheless are also essentially historical phenomena. Clearly, this is a huge project but one that we simply cannot afford to ignore. It is not about the political uses and abuses of federalism; rather it is about the contemporary utility of historical significance. Ultimately, managing diversity in federal states can be understood only if we take into account comparative case studies that incorporate historical specificities, contextual experiences, and the respective points of departure that explain both the origins and formation of federations.

440 Michael Burgess Notes   1 In the Canadian context, the term constitutional minoritarianism was first used by Alan C. Cairns to refer to the post–Meech Lake era of the 1990s; see his Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland and Stewart, 1991), and Charter versus Federalism (Montreal: McGill-Queen’s University Press, 1992).   2 Here I am using the conceptual distinction originally introduced by Preston King, in Federalism and Federation (Beckenham: Croom Helm, 1982).   3 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama, 1987), 66.   4 William S. Livingston, ‘A Note on the Nature of Federalism,’ Political Science Quarterly 67/1 (1952): 81–95.   5 For a detailed survey of this approach, see Alain-G. Gagnon and Mary Beth Montcalm, Quebec: Beyond the Quiet Revolution (Scarborough: Nelson Canada, 1990).   6 See Garth Stevenson, ‘Federalism and the Political Economy of the Canadian State,’ in Leo Panitch, ed., The Canadian State: Political Economy and Political Power (Toronto: University of Toronto Press, 1977), chapter 3, 71–100.   7 Elazar, Exploring Federalism, 64.   8 Ibid., 66.   9 Ibid. 10 Ibid., 67. 11 I have tried to furnish the basis for a comparative explanation of the formation of federations by presenting a theory of circumstantial causation in order to identify and locate a set of variables present to varying degrees in every modern federation, in my Comparative Federalism in Theory and Practice (London: Routledge, 2006), chapter 3. 12 See Charles Taylor, ‘Shared and Divergent Values,’ in Ronald L. Watts and Doug M. Brown, eds., Options for a New Canada (Toronto: University of Toronto Press, 1991), 53–76; ‘The Deep Challenge of Dualism,’ in Alain-G. Gagnon, ed., Quebec: State and Society (Scarborough: Nelson Canada, 1993), 81–95; and ‘Why Do Nations Have to Become States?’ in Charles Taylor (with an introduction by Guy Laforest), Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism (Montreal and Kingston: McGillQueen’s University Press, 1993), 40–58.

17 Asymmetries in Canada and Spain kenneth mcroberts

By its very nature, a concept such as asymmetry lends itself to myriad applications. Certainly, many students of political institutions are familiar with the notion: asymmetrical federalism is the focus of a burgeoning literature.1 But one could also imagine asymmetry among competing national identities, and one can readily identify social asymmetries among groups and collectivities, whether in demographic strength or in economic and political power. This chapter will explore the interrelationship among all three forms of asymmetry. In particular, it will ask whether some of the conflicts attendant on asymmetries in identity and social structure can be relieved by asymmetry in political institutions or whether these conflicts in fact preclude extensive institutional asymmetry. This exploration will be based primarily on an examination of asymmetries in Canada and Spain. Finally, we will ask what implications this has for that oft-proclaimed ideal of a multinational federation. Can such a federation be secured without an underlying symmetry not only in identities but in social and economic power? Forms of Asymmetry In terms of political institutions, the asymmetry/symmetry paradigm asks whether the key units that compose the political community, whether territorial or non-territorial, are treated on the same basis. Defined this way, it applies as much to unitary as to federal political systems. For instance, within political institutions is formal recognition given to one language or several? And is this recognition of languages itself symmetrical, or is a privileged status given to one or two

442  Kenneth McRoberts

languages? Is representation of different territories or collectivities within legislatures proportional to population or are some, presumably smaller collectivities, deliberately overrepresented? In many cases, of course, this overrepresention itself derives from a different notion of symmetry: all units having the same number of representatives. Beyond numerical representation, there is the question of whether voting procedures afford certain minorities the right to a veto or other consociational devices.2 Nonetheless, thanks largely to a 1965 article by Charles Tarlton, the term asymmetry has been more closely attached to federal systems.3 Asymmetrical federalism involves first and foremost the relationship of each of the constituent units to the central government. Asymmetry springs from one or more units exercising powers that in the rest of the system are exercised by the central government. This may result simply from intergovernmental agreement, formal or tacit. But asymmetry can also have a constitutional basis: federal authority may depart from the norm in the case of some units, some units may be given powers not available to others, or all units may be given the choice to exercise certain powers. Finally, asymmetries may emerge in party systems as the ‘national’ parties are effectively present in some constituent units but not in others.4 Turning to the second form of asymmetry, asymmetrical identities, minority nationalism, implies an obverse: majority nationalism. Asymmetry between majority and minority national identities might involve attachment to different collectivities that are contained within the same state, one of which happens to be numerically predominant. But more likely it entails a deeper asymmetry in which the ‘majority’ national identity embraces the polity as a whole and adopts the discourse of a nation-state. Then, by definition, the nationalism of a minority ‘nation’ within the state is illegitimate, however firmly it should reject secession. Only the central state can be the object of a ‘national’ identity. Asymmetry then becomes one of two mutually exclusive identities. Finally, asymmetry in social structure is a familiar theme. In part, it involves numbers. Social asymmetry is especially profound when one group can claim ‘majority’ status, in opposition to a single ‘minority’ group or several. Differentials in economic power may serve to attenuate this first asymmetry, or to reinforce it. And, of course, these social asymmetries may interact with asymmetries in identities serving to reinforce, or to impede, majority nationalism’s effort to eliminate all competitors.

Asymmetries in Canada and Spain  443

Canada and Spain Given their many manifest differences, Canada and Spain may seem an odd choice for comparison.5 Nonetheless, the theme of asymmetry, especially asymmetrical federalism, has been recurrent in the political life of both countries. In Canada, a central argument of Quebec nationalists in the 1960s was that their province should assume powers and even a status different from the other provinces. This became the official policy of the Quebec Liberal Party under Jean Lesage. Moreover, during the 1960s, asymmetrical federalism evoked a certain support among English-speaking Canadian political elites. In more recent years, given repeated setbacks to the cause of asymmetrical federalism, Quebec nationalists have largely abandoned the objective but it has remained a central objective of the Quebec Liberal Party.6 And it continues to be advocated by some anglophone Canadian intellectuals and political elites seeking an accommodation with Quebec nationalism.7 At the same time, in recent years many of Canada’s Aboriginal leaders have championed asymmetrical arrangements for the First Nations. They were a major part of the ill-fated Charlottetown Accord of the early 1990s.8 As for Spain, the theme of asymmetrical federalism enjoys considerable support among ‘minority’ nationalists. This is clearly demonstrated in Catalonia where it has been embraced in one form or another by all parties based there, although not by the Catalan sections of the two Spain-wide political parties.9 Thus, during the late 1990s the leader of the Iniciativa per Catalunya (IC) forthrightly used the term ‘asymmetrical federalism’ to define his party’s option.10 Other parties have used other terms to denote programs that amount to asymmetrical federalism. This was the case of the Esquerra Republicana de Catalunya (ERC) during the 1995 Catalan elections.11 The governing Convergència Democràtica de Catalunya (CDC) debated a manifesto that proposed a variety of arrangements including: an independent Catalan judiciary, elimination of Spanish administrative offices in Catalonia, and Catalan representation in the European Community, along with fiscal arrangements similar to the Basque Country’s. In addition, the proposal called for recognition of Spain’s ‘plurinational’ character by creation of a Spanish cultural council of the historic nations and the use of Catalan, Basque, Galician, and Castilian on all Spanish personal identification documents.12 The CDC’s coalition partner, the Unió Democràtica de Catalunya (UDC), debated a similar set of proposals.13

444  Kenneth McRoberts

By the same token, Catalan intellectuals have been active in promoting asymmetrical federalism.14 Beyond elaborating formal schemes, they have sought to analyse its philosophical bases. For instance, a recent book by Ferran Requejo explores the implications of plurinationality, showing how it cannot be captured by notions of cultural pluralism and multiculturalism and is excluded by traditional notions of liberal democratic citizenship and then going on to outline a model of a plurinational Spanish state in which asymmetry has pride of place.15 Asymmetries in Canada and Spain Asymmetrical federalism has had this resonance in Canada and Spain because both countries are marked by the two other forms of asymmetry: asymmetrical identities and social asymmetry. In the case of Canada, asymmetry in national identities has been present ever since the creation of the Dominion of Canada in 1867. For several decades, the asymmetry was between francophones’ sense of membership in a distinct French-Canadian or Canadien nation that, while not coterminous with Canada, existed beyond Quebec and anglophones’ sense of membership in an entity that transcended Canada: the British Empire. The terms of asymmetry have changed. Now most anglophones see Canada as their nation, with Ottawa as the national government, whereas most francophones, in Quebec at least, have replaced the notion of a Canadien nation with attachment to an explicitly Quebec nation, represented by the government in Quebec City. Yet, only a minority of Quebec francophones see full sovereignty as the preferred condition for the Quebec nation. Most Quebec francophones continue to envisage their nation as part of the Canadian state and to see themselves, if only for limited political purposes, as Canadian.16 After all, francophones have a long history of involvement in Canada beyond Quebec. The first white explorers of much of present day Canada were French-speaking. There have been francophone settlements in most parts of Canada, even if beyond Quebec and New Brunswick most of them have been seriously depleted through assimilation. The very term ‘Canada’ was adopted during French rule. Yet, this particular sense of being Canadian hardly squares with the national identity held by most anglophones. In short, in Canada the terms of asymmetry have changed but not the fact of asymmetry. Indeed, the 1970s and early 1980s saw a concerted effort on the part of the federal government, under Pierre Trudeau, to

Asymmetries in Canada and Spain  445

eliminate this asymmetry once and for all by leading Quebec francophones to see themselves first and foremost as Canadian. Yet, the strategy failed. In fact, the end result was to reinforce profoundly the asymmetry in national identities.17 In Spain, the terms of asymmetry in identities have remained the same. Indeed asymmetry has centuries-old roots, with Catalans, Basques, and Galicians bearing their own national identities but other Spaniards seeing Spain as the nation. Juan Linz has described this asymmetry in terms that could as easily apply to Canada: Spain represents ‘a state for all Spaniards, a nation-state for a large part of the population, and only a state but not a nation for important minorities.’18 Beyond that, during the Franco regime the Spanish state undertook an especially aggressive attack on minority national identities, forthrightly suppressing the languages on which the identities were based. Nonetheless, the national identities persisted. Still, as in Canada, support for outright secession remains limited. In both countries, underpinning this asymmetry in identities is, of course, social asymmetry. In Canada, roughly two-thirds of the population speaks English as their first language and 21 per cent speaks French, with the rest using other languages.19 And knowledge of the other language is also asymmetrical: in 2006, only 9.4 per cent of Canadians whose first language was English claimed to know French, whereas 42.3 per cent of Canadian francophones claimed to know English.20 Moreover, the distribution of the two groups across Canada is heavily asymmetrical. Historically, the francophone population has always been concentrated primarily in what is present-day Quebec.21 Among the four colonies that created Canada, only Quebec had a francophone majority (78%). New Brunswick’s francophone population, the next largest, was only 16 per cent.22 Over the first few decades of Confederation, the francophone presence grew in other parts of the new Dominion. The Western Canadian territories that Canada acquired in 1870 contained large numbers of Métis, of Indian and French descent. Francophones from Quebec settled in Ontario as well as parts of Saskatchewan and Alberta. The francophone proportion of New Brunswick’s population grew substantially. Nonetheless, outside Quebec assimilationist pressures have always been strong. The federal government’s efforts in recent decades to stem these assimilationist pressures have been largely unsuccessful. Indeed, over the period 1996–2006 the absolute numbers of francophones and their proportions of the provincial populations have declined in all

446  Kenneth McRoberts

provinces but Quebec and New Brunswick and increased in absolute numbers in British Columbia and Alberta (the latter two reflect interprovincial migration).23 Thus, according to the 2006 census 91 per cent of Canada’s French-speakers live in Quebec.24 Demographers expect this asymmetry in the distribution of francophones, and anglophones, to become even more pronounced in the coming years. The Spanish situation is different: virtually all citizens speak a common language, Spanish. In addition, however, about 25 per cent of the population has another language as first or second language, whether Catalan, Basque, or Galician.25 As in Canada, language use is closely linked to territory. Among Spaniards knowledge of Basque is effectively restricted to the Autonomous Community (AC) of Euskadi, where it is known by about 25 per cent of the population.26 Galician is similarly restricted to Galicia, where it is spoken by about 80 per cent of the population.27 On the other hand, knowledge of Catalan extends beyond the Autonomous Community of Catalonia, where it is known by about 90 per cent of the population, to bordering areas of Aragon, the Balearic Islands, and much of Valencia (although Valencian nationalists contend that their language is distinct from Catalan).28 Unlike the case of French in Canada, there are no significant communities speaking any of the three languages in other parts of Spain. In a purely geographical sense, they are very much ‘regional’ languages. In the Canadian case, the demographic weakness of French historically has been reinforced by economic inferiority. Until quite recently, there was within Quebec itself a cultural division of labour between francophones and the anglophones. This division has largely disappeared, thanks in particular to the concerted efforts of the Quebec government. But Quebec itself remains substantially below the Canadian mean for economic well-being. The pattern has been markedly different in Spain. Historically, Catalans and Basques have been the leading forces in the development of Spanish commerce and industry. Within Catalonia, Catalan speakers are in a superior economic and social position to Spanish speakers. Both Catalonia and the Basque Country continue to be above the national average by most economic indicators.29 In recent decades, Madrid’s economic importance has increased with the expansion of state enterprises and the arrival of more corporate headquarters and other centres of economic decision-making. Still, asymmetry in interregional economic strength continues to attenuate the effects of demographic asymmetry. Finally, this asymmetry in national identities and demographic (if not

Asymmetries in Canada and Spain  447

economic) strength of the populations that bear them is closely reflected in the territorial structure of the two political systems. In both instances, minority nations dominate only a single territorial unit. As we have seen, in Canada anglophones are the overwhelming majority in nine of the ten provinces, leaving only Quebec with a francophone majority. In Spain, Basques and Galicians each dominate a single Autonomous Community; Catalan is spoken in two units (Catalonia and the Balearic Islands) and Valencian is spoken in Valencia, leaving twelve ACs with predominantly Spanish-speaking populations.30 Indeed, among contemporary federal (or ‘quasi-federal’) systems, Canada and Spain are among the very few, along with Malaysia and Russia, to demonstrate such extreme asymmetry.31 Asymmetrical Federalism in Canada and Spain In short, the case for asymmetry in political institutions would seem to be overwhelming in the instances of Canada and Spain. Thus, they should be good tests of the feasibility of asymmetrical federalism. Indeed, there have been recurrent campaigns on its behalf in both countries. Yet, the fact of the matter is that, despite the historical strength of asymmetries in identities and social structure in both countries, there have been major challenges to developing institutional asymmetry – especially as a way of accommodating minority nations. In the case of Canada, some asymmetrical arrangements have been adopted to accommodate aspects of Quebec’s distinctiveness. But over recent decades, the asymmetrical treatment of Quebec, especially on a de jure basis, has been increasingly seen as illegitimate in the rest of the country. With respect to central institutions, the Constitution Act, 1867, recognized the two principal languages, English and French, on a symmetrical basis as the languages of Parliament and the federal courts. Through the Official Languages Act, adopted in 1969, the federal government has sought to make federal services available in both languages throughout the country, once again, on an equal basis. Nonetheless, by most accounts, working language practices within the federal bureaucracy itself remain asymmetrical, with English very much dominant. Within the Senate, Quebec is guaranteed close to one-quarter of the seats, but so is Ontario.32 The clearest instance of asymmetrical arrangements for Quebec in central institutions lies with the Supreme Court, of whose nine justices three must be from the Quebec bench.33 Nonetheless, as

448  Kenneth McRoberts

justices they are not to be active representatives of Quebec or French Canada. Thus, there is no de jure asymmetry in francophone or Quebec representation in Canada’s central institutions. Over the years, some observers have claimed that Quebec members of federal cabinets have exercised a de facto veto, but this is far from clear. The Charlottetown Accord, a 1992 federal–provincial agreement on constitutional change that was rejected in a popular referendum, would have introduced de jure asymmetry to the representation of Quebec and francophones. In a revised Senate, francophone senators would have possessed a formal veto over any bill that ‘materially affects the French language and culture in Canada’;34 there was no comparable measure for anglophone senators. Also, in the House of Commons, Quebec would have been guaranteed 25 per cent of the seats no matter how far its proportion of the Canadian population should fall below that level.35 This measure aroused strong opposition in English Canada, helping to ensure defeat of the Accord, while having little impact on Quebec francophones.36 Turning to the provinces, the Constitution Act, 1867, gave asymmetrical status to languages. In only one province, Quebec, did it establish formal equality between English and French. Clearly, the purpose was to protect the position of Quebec’s anglophone minority. There were no provisions regarding the status of languages in the three other provinces established through Confederation. Upon its creation as a province in 1870, Manitoba recognized limited equal status for the two languages but this was rescinded in 1890. In 1979 the provisions were restored through a Supreme Court decision, but Manitoba abandoned a subsequent attempt to have French, and English, formally declared official languages. Also, New Brunswick declared itself officially bilingual in 1969; this was entrenched in the Constitution Act, 1982. All of the other provinces give prior status to English, whether through legislation or on a de facto basis. The closest to come to official bilingualism is Ontario where French has official status in education and the courts. For its part, in 1974 Quebec established French as its only official language through Bill 22. This in turn was reinforced in 1977 by Bill 101, or La Charte de la langue française. In sum, asymmetry remains the rule at the provincial level, with one language having prior status in all but one province. Turning to the division of powers, the Constitution Act, 1867, provided for separate treatment of Quebec with respect to civil law: in deference to Quebec’s distinctive Civil Code, Quebec was not obliged to join

Asymmetries in Canada and Spain  449

the other provinces in any standardization of civil law when joining Confederation.37 The Constitution Act, 1867, gave no powers or responsibilities exclusively to Quebec. Over the years, an extensive degree of de facto asymmetry developed in the Canadian political system. In the course of the 1950s, the Quebec government refused to participate in a large number of federal–provincial programs, foregoing federal funds in the process. However, during the 1960s the federal government adopted arrangements that allowed Quebec to receive financial compensation when opting out of such programs. While this option was available to all provinces, Quebec invariably was the only one to exercise it. With the late 1960s and into the 1970s, however, Prime Minister Pierre Elliott Trudeau made a concerted effort to eliminate these forms of asymmetry. Both the Charlottetown Accord and the Meech Lake Accord (a previous, unsuccessful attempt at constitutional revision) would have established a de jure right for provinces to ‘opt out’ of some federal programs, but these provisions provoked considerable opposition in English Canada. The growth of anglophone-Canadian opposition to asymmetrical arrangements has also shaped public debate regarding the constitutional amending formula. In 1971, the anglophone premiers all accepted a formula that provided an effective veto to Quebec, and to Ontario, by requiring approval by provinces with 25 per cent or more of the Canadian population. Over subsequent years, Western Canadian opposition to such schemes became so strong that the formula adopted in 1982 provides no veto to a single province.38 The issue of whether asymmetry should be used to accommodate the distinctive national identity of Quebecers was most clearly joined in the debate over the Meech Lake Accord, a package of constitutional changes that was adopted by the first ministers in 1987 but that failed to receive ratification by all provincial legislatures within the required three years. The ‘notwithstanding clause’ of the Constitution Act, 1982, created the potential for asymmetry in the application of the new Charter of Rights and Freedoms: Parliament or any legislature can use the clause to protect a law from most provisions of the Charter. However, the Meech Lake Accord sought to require an asymmetry in application of the Charter that would be specific to Quebec alone. Courts would be required to take account of the fact that Quebec constituted a ‘distinct society’ and that its government and legislature had a particular responsibility to maintain Quebec’s ‘distinct identity.’ Such an explicit de jure recognition of Quebec’s distinctiveness was clearly unaccept-

450  Kenneth McRoberts

able to most English-speaking Canadians and was the primary factor in fuelling their opposition to the Accord as a whole.39 The late 1980s and early 1990s represented the high point of efforts to secure formal recognition of Quebec’s distinctiveness in the Canadian Constitution. In the wake of the abject failure of these efforts, no government has sought to initiate new discussions of constitutional revision, whether to accommodate Quebec or to achieve any other pur­pose. The risks of failure are generally seen to be simply too great, especially in light of continuing anglophone opposition to recognizing Quebec. Thus, when a Quebec member in the current Conservative federal government suggested in 2008 that new efforts might be taken to secure constitutional recognition of Quebec, his government quickly disavowed any such intention. For its part, the Quebec government promptly declared that conditions were not yet ripe for such an initiative.40 On the other hand, the past few years have seen considerable efforts to pursue asymmetrical strategies on a non-constitutional basis. In September 2004, after having been reduced to minority status, Paul Martin’s Liberal government signed an agreement on health with the provinces that spoke openly of ‘asymmetrical federalism.’ In the name of this principle, it contained an annex that applies only to Quebec. To be sure, health care is a matter of provincial jurisdiction; the agreement governs the conditions under which Ottawa might make transfers in this area. Still, this open application of asymmetry to accommodate Quebec was enough to provoke a fierce reaction among the advocates of Trudeaustyle Canadian nationalism. Thus, in the pages of Walrus, pollster and analyst Alan Gregg declared: ‘a principle has been endorsed that sets up the possibility of “sovereignty-association” not just for Quebec, but for all ten provinces.’41 The Martin government was not so accommodating when the Quebec government went on to demand that the asymmetry principle be applied to international relations. Drawing upon the Gérin-Lajoie doctrine, named after one of the leading figures in the Quebec government during the Quiet Revolution of the 1960s, Quebec declared that it had the right to act internationally within areas that fall under its exclu­sive jurisdiction as a province, such as health care and education. However, Canada’s foreign affairs minister Pierre Pettigrew quickly made it clear that Canada had to ‘speak with one voice on the international stage.’42 Nonetheless, during the 2005 federal election campaign, Conserva-

Asymmetries in Canada and Spain  451

tive leader Stephen Harper evoked an arrangement that Conservative Prime Minister Brian Mulroney had developed to allow Quebec a presence at the 1987 Sommet de la Francophonie. In a Quebec City speech that was well-received in the Quebec francophone media, Harper proposed that Quebec be granted a similar participation in the deliberations of UNESCO.43 For his part, Liberal leader Paul Martin denounced the idea as weakening the federal government’s proper role in international affairs. The Conservatives won the election, on 23 January 2006, albeit as a minority government in good part because of gains in Quebec: Harper’s UNESCO commitment evoked a new style of federal–provincial relations that would be more accommodating of Quebec’s distinctiveness. Moreover, by all accounts, future gains in Quebec were central to their strategy for securing majority status through a new election. Not surprisingly, then, the Harper government made good on its UNESCO pledge. The arrangement did fall short of Quebec’s formal membership in la Francophonie since, unlike la Francophonie, membership in the U.N.’s bodies, including UNESCO, is reserved to sovereign states. In 2006, Prime Minister Harper and Quebec premier Jean Charest signed an agreement by which Quebec would have simply ‘un représentant officiel’ in the Canadian delegation. This Quebec representative would have the right to participate in UNESCO deliberations, under the general direction of the head of the Canadian delegation. But he or she would have no veto over Canada’s vote. Nonetheless, Premier Charest declared that the agreement ushered in ‘une nouvelle ère de partenariat entre les deux gouvernements … Le gouvernement fédéral reconnaît formellement la capacité du Québec d’agir sur le plan international.’ For his part, Prime Minister proclaimed: ‘C’est une nouvelle ère qui s’amorce afin de bâtir un Canada fort, uni, indépendant et libre au sein duquel un Québec confiant, autonome, solidaire et fier peut pleinement s’épanouir.’44 Then in January 2006, in a surprise move, the Harper government initiated a measure, once again without constitutional status, that explicitly recognized Quebec’s distinctiveness. It secured approval in the House of Commons of a resolution recognizing that ‘the Québécois constitute a nation, within a united Canada.’ To be sure, usage in English of ‘Québécois’ as opposed to ‘Quebecers’ could be seen to imply that only Quebec francophones are members of the Quebec nation. To that extent, the resolution collided with the Quebec government’s inclusive idea of a Quebec nation that is composed of all Quebec residents.45 Still,

452  Kenneth McRoberts

it is inconceivable that the Trudeau or Chrétien governments would have supported such a resolution.46 Indeed, Stephen Harper in the past had himself been opposed to any formal recognition of Quebec’s distinctiveness; this fact may have rendered the measure less objectionable to anglophone-Canadian public opinion. In sum, while Canadian federalism features extensive asymmetry in arrangements between Ottawa and the various provinces, the use of asymmetry specifically to accommodate Quebec remains quite limited, especially on a de jure basis. At the same time, it should be noted that the Charlottetown Accord adopted extensive asymmetry in its provisions dealing with Aboriginal peoples. While not formally recognizing Aboriginal languages, the Accord did provide for Aboriginal self-government on the basis of arrangements that were to be negotiated between various First Nations and the federal and provincial governments. Given the enormous range in the conditions and needs of the First Nations, there clearly would have been a high degree of asymmetry in the terms of self-government. And the agreements would have resulted in a ‘third level of government’ that would not be equivalent to the provinces.47 There appears to have been less public opposition to these forms of asymmetry than there was to the arrangements dealing with Quebec. Turning to Spain, the Constitution that was adopted in 1978 recognizes the three ‘historic nations’ in only the most circumscribed of terms. Article 2 recognizes the right to autonomy of ‘the nationalities’ (not nations) as well as regions, giving them all the common title of Autonomous Communities (ACs) but this recognition is preceded with the assertion of ‘the indissoluble unity of the Spanish Nation, the common and indivisible country of all Spaniards.’48 And, while recognizing that in some Autonomous Communities other languages may join Castilian (Spanish) as official languages, Article 3 of the Constitution opens with the declaration that Castilian is ‘the official Spanish language of the state’ and all Spaniards ‘have the duty to know it and the right to use it.’49 Thus, in contrast to the official bilingualism of the Canadian government, the languages of the three ‘nationalities’ play no official role in the deliberations of the Spanish Parliament, let alone the operations of the Spanish government. The only breach in this unilingual regime is the recently adopted practice of the Spanish Senate whereby, one day each year, speeches should be allowed in the languages of the nationalities. By the same token, representation in the Senate, as with Congress, is based not on Autonomous Communities, but on the smaller units of

Asymmetries in Canada and Spain  453

provinces. At the same time, though, the Autonomous Communities can appoint some additional senators (47 of 255).50 As for the relationship between the seventeen Autonomous Communities and the Spanish state, it can reasonably be asked whether the relationship is genuinely federal, symmetrical or asymmetrical. By some common standards of federalism, the system comes up wanting. The Autonomous Communities have the right to give official status to a language, although they are bound to respect Castilian as an official language.51 Indeed, six ACs have taken advantage of this provision.52 However, the legislative powers available to most of the ACs are quite modest and, rather than providing exclusive control over a sector of state activity, they tend to consist of the ability to act within the terms of an organic law set by the Spanish Parliament.53 Most importantly, all but three ACs, the Basque Country, Navarre, and Catalonia, have no meaningful independent taxing power.54 Moreover, the ACs have no guaranteed role in the constitutional amendment process.55 Thus, scholars have tended to dub the system an ‘emerging federalism’ or an ‘imperfect federalism’ rather than a full-blown federal system.56 Still, as we shall see, the current Spanish government of José Zapatero has adopted a much more accommodating stance vis-à-vis the ACs. Through a variety of measures it has brought Spain much closer to a federal system. The question for our purposes is whether in Spain there are significant areas of asymmetry in the relationship between the ACs and the state, however it should be characterized. This has indeed been the case. In a few instances, the ACs stand as permanent features of the Spanish system. Most dramatic of these is the confederal-like fiscal arrangement that the Spanish state has with the Basque Country and Navarre. In effect, these two ACs have exclusive power to collect taxes within their territories; the central government must negotiate reimbursement for the services it provides them. Yet, the rationale for these arrangements lies in the medieval notion of fueros rather than any adoption of the principle of national recognition. Thus, it has not been extended to the other ‘historic nations,’ despite repeated demands by Catalonia. Indeed, most of the asymmetry in relations between the ACs and the central government in Madrid has emerged through sheer necessity and has been seen by the Spanish state, and most Spaniards, as an essentially transitional phenomenon.57 In 1978, the very system of Autonomous Communities was adopted largely in response to pressures from the

454  Kenneth McRoberts

Basque Country and Catalonia. Few other areas were desirous of or even able to assume autonomous responsibilities. Accordingly, it was agreed that the ACs would come into existence according to their own schedules, through separate Statutes of Autonomy. Moreover, it was agreed that the three ‘historic nations,’ the Basque Country, Catalonia, and Galicia, should be able to do so at a faster rate than the others. Nonetheless, to avoid the appearance of favouring the Basque Country and Catalonia, which had required this concession, other regions were given the opportunity to secure the same degree of autonomy under a complicated system of local referendums (in each province). Andalusia succeeded in doing so. Also, Navarre was granted a special regime since it did not want to be part of the Basque Country. The remaining regions were to achieve their status as Autonomous Communities through a much slower route that was not expected to result in the same degree of autonomy; fourteen ACs emerged on this basis.58 Moreover, as Catalonia, the Basque Country, and Galicia began to exploit the new possibilities, Spanish leaders (propelled in part by a disgruntled military) soon became uncomfortable with the emerging state of affairs. In 1982 the Spanish Parliament sought to rein in the emerging asymmetry among the ACs by passing an Organic Law for the Harmonization of the Autonomy Process (LOAPA). Through the law, powers would be clawed back, and the regional parliaments would be required to have their laws ratified by the central government.59 Only a constitutional court decision prevented the measure from being put into effect. Nonetheless, some provisions of the LOAPA survived the court challenge and did serve to standardize the powers of the ACs.60 The Spanish state has also used a variety of other tactics to minimize the level of asymmetry among Autonomous Communities. First, special laws in 1982 gave Valencia and the Canary Islands powers equivalent to those secured by the ‘fast track’ ACs. Thus, instead of the three ‘historic nations,’ six ACs have assumed responsibility for education and the same number for health care. Second, it has made vigorous use of its powers to oversee and even intervene in some AC jurisdictions, including health care and education. Finally, it has broadened participation in intergovernmental relations through policy forums and commissions.61 Differences remain: the Basque Country and Catalonia are the only ACs to assume responsibility for non-municipal policing. Catalonia has distinctive laws, especially in family law, dating from its existence as an independent kingdom, and Galicia maintains unique laws regard-

Asymmetries in Canada and Spain  455

ing land that derive from its legal traditions.62 Nonetheless, not only the passage of time but the deliberate efforts of the Spanish state have resulted in a substantial narrowing of asymmetry among the ACs.63 For that matter, four other ACs (Andalusia, Valencia, Aragón, and the Canary Islands) have designated themselves as ‘nationalities’ through their Statutes of Autonomy.64 Over the past two decades some new forms of asymmetry have arisen, as Catalonia and the Basque Country have assumed additional responsibilities. Yet, for the most part this new phase of asymmetry is a simple result of the balance of power among political parties in the Spanish Parliament, rather than reflecting any conversion of the Spanish state to the principle of asymmetry, let alone recognition of the distinctiveness of the historic nations. As we shall see, the Socialist government of José Zapatero may constitute an exception. Unlike Canada’s Parliament, the new Spanish Parliament contained from the outset members of nationalist parties – primarily Basque and Catalan. With the ruling Socialist party’s loss of its parliamentary majority in 1993, the nationalist parties assumed a new leverage. During the next four years they supported the Partido socialista obrero español (PSOE) government on ad hoc basis in return for various concessions. In 1996, however, the new Partido popular (PP) government, also short of a parliamentary majority, entered into formal agreements with the Catalan and Basque nationalist parties. These agreements, it should be stressed, were negotiated between parties rather than between the central government and the Basque and Catalan governments. To be sure, the President of Catalonia, Jordi Pujol, negotiated his agreement directly with President Aznar, as did his Basque counterpart. But the agreement itself reads as an agreement between the PP and the CiU. The terms of the agreements were not formally debated, let alone approved, by the Catalan and Basque parliaments. Thus, they have no basis other than party fortunes in the Spanish Parliament. Just as with the initial elements of asymmetry in 1978, this new phase was born of necessity, in this case parliamentary, rather than any acceptance of the underlying principle. And the arrangements certainly involve no recognition of Basque and Catalan demands for national recognition. The Partido popular would have been most unlikely to agree to such recognition given its roots in conservative Spanish nationalism and the highly unitary discourse that it had adopted prior to the 1997 election. Thus, the agreement with the Catalan nationalists totally avoids the issue of national status. The pact was justified in terms of the

456  Kenneth McRoberts

need to create employment and ensure that Spain meets the conditions for participation in the European monetary union. In fact, most of the provisions apply to all the ACs rather than Catalonia alone and focus upon reforming the fiscal arrangements with the ACs, granting all ACs a larger share of revenue.65 Indeed, once it secured a majority status, through the election of 2000, the Aznar government was quick to reject any further demands from Catalonia and the Basque Country, claiming that they were not in accord with the Spanish Constitution. Thus, it flatly rejected the proposal of its former allies, the CiU, to initiate a reform of Catalonia’s Statute of Autonomy. Nonetheless, the general election, in March 2004, ushered in a new era in relations between the Spanish government and the Autonomous Communities, including the ‘historic nations.’ Under the leadership of José Zapatero, the Socialists formed a minority government. In the runup to the election, Zapatero had promised a new approach to dealings with the ACs and, in particular, support of plans to revise the Statute of Autonomy of Catalonia, which was now in Socialist hands, under Pasqual Maragall. Drawing upon a procedure available in the Spanish Constitution, the Maragall government initiated the drafting of a new statute. Ultimately, all parties in the Catalan Parliament but the Partido popular came to terms on a new text. With some revisions, and thanks to Zapatero’s active support, along with the CiU and members of his own party, the statute was approved by the Spanish Parliament in May 2006. On 19 June 2006 the statute was approved in a Catalan referendum by 74 per cent of voters, but with only 49.4 per cent of the electorate participating. The new Statute of Autonomy includes the following: the obligation on all residents to learn the Catalan language; stronger limitations on the application in Catalonia of the Spanish Parliament’s ‘basic laws’; responsibility for immigration into Catalonia; and new fiscal arrangements under which Catalonia will control directly more than half of the taxes, have a Catalan tax administration, and secure more public money for infrastructures in future years. Perhaps most controversial of all, the Statute’s preamble declares: ‘In reflection of the feelings and the wishes of the citizens of Catalonia, the Parliament of Catalonia has defined Catalonia as a nation by an ample majority. The Spanish Constitution, in its second Article, recognises the national reality of Catalonia as a nationality.’66 Not surprisingly, the measure generated strong opposition in Span-

Asymmetries in Canada and Spain  457

ish public opinion, in the name of the Spanish nation, and even led to a popular boycott of Catalan projects. Indeed, once the referendum had taken place the Partido popular filed an appeal with the Spanish Constitutional Court. Not only that, it called for the recusal of one of the justices for alleged relations with the Catalonia Generalitat.67 Two years later, the Court had still not resolved the matter. Explaining the Limits of Asymmetrical Federalism In part, the limited development of asymmetrical federalism in Canada and Spain might be explained in terms of institutional design questions. Certainly, they have become stock-in-trade of the debate in Canada. Critics have claimed that if Quebec should opt out of a significant share of programs then questions would arise about the propriety of Quebec members of Parliament voting on measures that do not apply to the province. Conceivably, it would be inappropriate for Quebec MPs to assume cabinet portfolios for areas in which Quebec has opted out of important programs. The same type of argument has been raised with respect to devolution to Scotland. Nonetheless, the problem should not be exaggerated. In Canada, Quebec MPs have voted on revision of the Canada Pension Plan, which does not apply to Quebec, and three different Quebec MPs have assumed the cabinet portfolio which has responsibility for the Canada Pension Plan. This provoked no objection. Still, if asymmetry were to be substantial then remedies could be adopted. For instance, MPs might be excluded from voting on measures that did not apply to their province or their votes might be weighted differently. Such votes might be declared not to be votes of confidence so as to avoid the fall of the government.68 A second set of constraints lies in the typical concern of bureaucracies with standardization and uniformity in their operations. Thus, during the 1960s senior administrators in the Canadian federal government were strongly opposed to the asymmetrical arrangements with respect to social policy that their political masters negotiated with Quebec. They were heartened by the arrival of a finance minister, Mitchell Sharp, who had formally opposed such arrangements and supported him in his campaign against them.69 Under federalism, asymmetrical arrangements can also fall victim to the demand of other governments that they too should have the same prerogatives. Indeed, it can be argued that asymmetry is easier to establish under a unitary government, where a set of territorial units is

458  Kenneth McRoberts

already in place and likely to demand similar treatment. Nonetheless, Canadian practice during the 1960s was to accommodate such sensibilities by making the possibility of withdrawing from federal programs available to all governments. Of course, typically it was known from the outset that Quebec would be the only government to take advantage of the opportunity. During the subsequent Trudeau regime, however, the federal government took quite a different tack. Where it did not eliminate the basis for ‘opting out,’ it actively encouraged other governments to follow Quebec’s example. For instance, after signing an immigration agreement with Quebec in 1978 the Trudeau government encouraged other provinces to enter into similar agreements so that Quebec could not appear to have special treatment.70 In other words, the generalization of special arrangements to other territorial units may reflect the central governments’ own unease with asymmetry as much as any resentment among the units themselves. Arguments about the functioning of legislatures or the standardizing proclivities of central bureaucracies would not in any event concern asymmetry among territorial units in the application of charters of rights, as with the notion of a ‘distinct society’ clause. Yet, in Canada, it is here that opposition to asymmetry has been the most forcibly expressed.71 This suggests that the primary force against asymmetry lies elsewhere: namely, asymmetry in national identities. After all, the argument against the ‘distinct society’ clause was that it offended the notion of Canada as a single nation. Once majority nationalism has become attached to central political institutions and the whole territory of the state, then minority nationalism, and accommodation of it through asymmetry, becomes illegitimate.72 The worst effects of asymmetry in national identities were avoided during much of Canada’s history. As long as anglophone-Canadian identity was defined primarily in terms of the British Empire, rather than the Canadian state, there was no direct conflict with the franco­ phone notion of a Canadienne nation within Canada. Problems did arise with respect to military obligations to the Empire, as French Canadians resisted the Dominion’s participation in the Boer War and the imposition of conscription for overseas service during the two world wars. But, otherwise, the asymmetry in identities could be managed. Indeed, French-Canadian legal and political elites tended to see in the Imperial connection protection against their English-Canadian compatriots. It was on this basis, for instance, that French-Canadian elites supported

Asymmetries in Canada and Spain  459

maintaining the Judicial Committee of the Privy Council (JCPC), rather than the Canadian Supreme Court, as the final court of appeal. Despite the growth in Canadian nationalism among Englishspeaking Canadians, it was still possible in the 1960s for anglophoneCanadian political and intellectual elites to entertain accommodating Quebec nationalism through asymmetry. With Quebec in mind, both the Liberal Party and the New Democratic Party formally adopted the notion that provinces should be able to ‘opt out,’ with fiscal compensation, from federal and federal–provincial programs. Indeed, the Liberal government of Lester Pearson offered this possibility in a wide range of areas. And Robert Stanfield, elected leader of the Progressive Conservatives in 1967, expressed general approval of the concept. By the same token, in one fashion or another all three major Canadian political parties adopted the term ‘nation’ to denote Quebec or French Canada.73 However, during the 1970s and 1980s the federal state, and many English-speaking Canadians, became increasingly wedded to a panCanadian nationalism. Moreover, thanks to the leadership of Pierre Elliott Trudeau, it is a version of Canadian nationalism that explicitly precludes the use of asymmetrical federalism, or any other approach, to accommodate Quebec nationalism. Within this vision Quebec and all other provinces are to have exactly the same status and play essentially the same roles. Trudeau won extensive anglophone-Canadian support for his contention that ‘opting out’ and ‘special status’ would only heighten the likelihood of Quebec seceding, as would a ‘distinct society’ clause. By the same token, Trudeau forthrightly sought to make the federal government the ‘national’ government of all Canadians. Thus, asymmetry in identities was no longer legitimate: the nation was to be Canada. In fact, it can be argued that by seeking to enlist all provinces in a policy of official bilingualism, and castigating Quebec’s adoption of French as its only official language, the Trudeau government was denying the significance of Canada’s social asymmetries: the profoundly uneven distribution of francophones across Canada, as well as the imbalances in economic power and opportunity within Quebec. Nonetheless, constitutionally entrenched through the patriation of 1982, this vision of Canada responded to a variety of social forces outside Quebec and secured the support of a large number of English-speaking Canadians. By all accounts, the Spanish situation is much simpler. The notion of a single, unitary nation has a longer history in Spain than in Canada. Certainly, it was given full expression during the four decades of the

460  Kenneth McRoberts

Franco regime. And, as we have seen, the 1978 Constitution recognition of the ‘nationalities’ is premised upon the ‘indissoluble unity of the Spanish Nation.’ Over the past two decades the notion of a single Spanish nation has been regularly evoked by each of the major Spanish political parties: the PSOE, the Partido popular, and the Izquierda Unida. Nor have they shown much enthusiasm for asymmetry as a way of accommodating the ‘historic nations.’ Apparently, there never was a period, comparable to Canada in the 1960s, when Spanish political elites were open to such possibilities. Spanish nationalism always precluded that. To be sure, both in Spain and in Canada the central governments have displayed a new openness to asymmetrical accommodation of, respectively, the ‘historic nations’ and Quebec. The Zapatero government clearly charted a new course, diverging from its Socialist as well as conservative predecessors with its embrace of the revised Catalan Statute of Autonomy, with its explicit reference to Catalan nationhood. Similarly, the Martin government explicitly diverged from the legacy of the Trudeau years when it signed a federal–provincial agreement that proclaimed the principle of ‘asymmetrical federalism’ and contained an annex for Quebec alone. The abandonment of the Trudeau orthodoxy was even more direct with the Harper government’s sponsorship of the resolution recognizing the nationhood of the ‘Québécois.’ Yet, in both countries, the forces against such asymmetry are still very much evident. Two years after adoption in a referendum, the new Catalan Statute of Autonomy is still before the Spanish Constitutional Court, and two years after it was elected, the Harper government has firmly disavowed any intention to seek recognition of Quebec’s specificity on a constitutional basis. Conclusion Both Canada and Spain confirm Charles Tarlton’s original point that federal systems are never fully symmetrical. The inevitable social and economic asymmetries among the constituent units guarantee that there will be variations in the roles that governments play. In Canada intergovernmental arrangements between Ottawa and the provinces continue to vary widely. For instance, the federal government’s Royal Canadian Mounted Police assumes the functions of a provincial police in eight provinces but not in the two largest provinces, Ontario and Quebec, which maintain their own forces. And there is a great vari-

Asymmetries in Canada and Spain  461

ation among the agreements regarding immigration (a concurrent power) that Ottawa has negotiated with each of the ten provinces. For that matter, in 1982 the federal and provincial first ministers (except Quebec’s) agreed to a notwithstanding clause in the Charter of Rights and Freedoms, creating the potential of asymmetry in the application of the Charter. Nonetheless, if asymmetry is defined in a way that seems to be geared specifically to Quebec, and the accommodation of Quebec’s claims to ‘national’ status, then it becomes problematic. Similarly, in Spain asymmetry seems to have emerged primarily as a transitional measure, as was the case in 1978, or as a temporary necessity of minority governments. In both cases the primary obstacle to institutional asymmetry is the way in which majority nationalism has become fastened on the central state. If this analysis is correct, and majority nationalism precludes the appropriate institutional responses to asymmetries in identity and society, how might this be remedied? As one might expect, scholars and commentators in both Canada and Spain have proposed that majority nationalism somehow should be disengaged from the central state.74 The majority nations should develop a distinctive identity of their own. Yet, in each case, it is difficult to see how that might be achieved. The old sense of an ‘English Canada,’ distinguished by language and a heritage of customs and practices derived from Great Britain, has been displaced by the notion of a bilingual, multicultural Canada. This notion provides no basis for distinguishing Canada Outside Quebec. Quebec may be predominantly francophone, but thanks to official bilingualism the French fact exists throughout Canada. Quebec’s predominant culture is simply one of a multitude of cultures in Canada, all on an equal footing. Now that this vision has been constitutionally entrenched it is difficult to see how the older notion of an ‘English Canada’ can be recovered or a new notion of an anglophone Canada substituted in its place. In the case of Spain, the dominant nationalist discourse does not really seek to incorporate the ‘historic nations’ within its vision of Spain. Rather it tends to define the Spanish nation in essentially Castilian terms and treat the other nations as inconsequential. Yet, there seems to be no readiness to limit this notion of Spain to the territory beyond the historic nations and see a Castilian nation as one, albeit the most important, among Spanish nations. Indeed, ‘Spanish’ is preferred over ‘Castilian’ to refer to the language.

462  Kenneth McRoberts

To conclude, recent experience in Canada and Spain suggests that there are major challenges to applying asymmetrical federalism. As in all federations (or would-be federations), differences among constituent units in land mass, population size, and similar characteristics will lead to many forms of asymmetry – de jure as well as de facto. However, the situation is much more complicated when there is asymmetry in national identities, and minority nationalism(s) is (are) confronted with a majority nationalism that views the central state as a nation-state. The complications are even greater when this asymmetry in identities is reinforced by social asymmetries, and majority nationalism is in fact the identity of an overwhelming majority of the population. In both Canada and Spain, the current central government is experimenting with asymmetrical measures to accommodate their respective ‘minority nations.’ So far, the Canadian government has managed to avoid triggering the country’s majority nationalism, perhaps because its measures do not involve formal institutional change; the Spanish government has not been so fortunate, perhaps because it has advanced measures that do involve such change. Notes   1 For instance, asymmetrical federalism was the theme of deliberations of the Comparative Federalism and Federation Research Committee, World Congress of the International Political Science Association, 21–2 Aug. 1994, Berlin.   2 Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977).   3 Charles D. Tarlton, ‘Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation,’ Journal of Politics 27/4 (1965): 861–74.   4 See the delineation of forms of asymmetrical federalism in Ronald L. Watts, ‘The Theoretical and Practical Implications of Asymmetrical Federalism: The Canadian Experience in Comparative Perspective,’ Paper presented at the World Congress of the International Political Science Association, 21–2 Aug. 1994, Berlin. Different forms of asymmetry are delineated in Enric Fossas Espadaler, ‘Autonomia y Asimetria,’ in Fundació Carles Pi i Sunyer, Informe Pi i Sunyer sobre Comunidas Autónomas, 1994 (Barcelona, 1995), 897–900.   5 Asymmetrical federalism in Canada and Spain has already been comparatively analysed in Enric Fossas, ‘L’assimetria federale: il Canada e la Spagna,’ Scienza e Politica, no. 17 (1997).

Asymmetries in Canada and Spain  463   6 Le Parti libéral du Québec, Reconnaissance et interdépendance. Rapport du comité sur l’évolution du fédéralisme canadien (Dec. 1996).   7 See, e.g., Gordon Laxer, ‘Distinct Status for Quebec: A Benefit to English Canada,’ Constitutional Forum constitutionnel 3/3 (1992): 62–6; Philip Resnick, ‘Toward a Multinational Federation: Asymmetrical and Confederal Alteratives,’ in F.L. Seidle, ed., Seeking a New Canadian Partnership: Asymmetrical and Confederal Options (Montreal: Institute for Research on Public Policy [IRPP], 1994), 71–90; Jeremy Webber, Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Montreal and Kingston: McGill-Queen’s University Press, 1994); and Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Don Mills: Oxford University Press, 1997).   8 Mary Ellen Turpel, ‘The Charlottetown Discord and Aboriginal Peoples’ Struggle for Fundamental Political Change,’ in Kenneth McRoberts and Patrick J. Monahan, eds., The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1993), 117–51.   9 The Partit dels Socialistes de Catalunya has embraced federalism, but a symmetrical version, and has secured the support of the Spanish socialist party (PSOE). See Audrey Brassloff, ‘Spain: The State of the Autonomies,’ in Murray Forsyth, ed., Federalism and Nationalism (Leicester and London: Leicester University Press), 41. For its part, the Partido popular has not embraced federalism in either form. 10 For instance, ‘La única traducción posible de aquella definición, la de la plurinacionalidad, se puede dar a través de la profundización de lo que académicamente se ha venido a denominar ‘federalismo asimétrico.’ Rafael Ribó, ‘Nacionalismos, Investiduras y Partidismos.’ Témas Para El Debate 30 (1997): 37. 11 While the ERC is formally committed to independence, the essence of an asymmetrical federal model appears in the ERC’s notion of a Pacte per la democràcia catalana I cap a la sobirania, which it would have presented as the basis of public consensus if it had won control of the Catalan government in 1995. ERC, Força! Cap a la independència, 1995, 21. 12 CDC, Per un nou horitzó per a Catalunya, 1997. 13 Uniò, La Sobirania de Catalunya i L’Estat Plurinacional, 1997. The documents dubs its model ‘confederal’ but, beyond fiscal arrangements patterned after the Basque arrangement, the proposals seem to amount to a federal system in which Catalonia would enjoy special powers and rights in recognition of its national status. 14 Political scientist Enric Fossas and law professor Ferran Requejo edited a volume on asymmetrical federalism to make the concept better known in Catalonia. See their Asimetría Federal y Estado Plurinacional: El debate sobre

464  Kenneth McRoberts la acomodación de la diversidad en Canadá, Bélgica y España (Madrid: Editorial Trotta, 1999), 99–139. 15 Ferran Requejo, Multinational Federalism and Value Pluralism: The Spanish Case (London: Routledge, 2005). 16 In 1995, during the last week of the referendum campaign on sovereignty, only 29% of Quebec francophones said they were ‘Quebecker only’ (McRoberts, Misconceiving Canada, 246). 17 Ibid., Chapter 7. 18 Juan Linz, ‘Early State-Building and Late Peripheral Nationalisms against the State: The Case of Spain,’ in S.N. Eisenstadt and Stein Rokkan, eds., Building States and Nations (Beverly Hills and London: Sage, 1973), 99. 19 According to the 2006 Census, 21.6% of Canadians spoke French at home with 66.7% using English at home. The Evolving Linguistic Portrait, 2006 Census (Ottawa: Statistics Canada, 2006). 20 Ibid. 21 Francophones from Quebec settled in Ontario as well as parts of Saskatchewan and Alberta. 22 This is based on proportion of population of French descent in 1871. The proportions for Ontario and Nova Scotia were 4.7% and 8.5%, respectively (McRoberts, Misconceiving Canada, 85). 23 This is based on language used at home. The Evolving Linguistic Portrait, 2006 Census. Ibid. 24 Ibid. 25 This figure is based on the percentages that follow. 26 Daniele Conversi, The Basques, the Catalans and Spain: Alternative Routes to Nationalist Mobilisation (London: Hurst, 1997), 163. 27 Ibid. 28 See the map in ibid., xix. 29 For instance, at the beginning of 1997 Catalonia (with 15.5% of the Spanish population) contained 473,806 enterprises or 19% of all Spanish enterprises. It contained 58,273 industrial enterprises, 23.4% of the Spanish total. In each case, Catalonia had more enterprises than any other AC. By the same token, the Basque Country (with 5.4% of the Spanish population) had 133,707 enterprises and 14,100 industrial enterprises. Primo González, ‘Cataluña es la autonomía con más empresas, con un 19% de total,’ La Vanguardia, 31 Oct. 1997. 30 The fact that Catalan is spoken in two ACs does deviate from the criteria established in the next note. The deviation would be even greater if Valencian were classified as Catalan – as most Catalans would insist is the case. 31 Our two criteria are: (1) whether the majority controls more than half the

Asymmetries in Canada and Spain  465 constituent units and (2) whether minorities control only a single unit. Restricting our analysis to federations marked by ‘national’ differences, these other entities are eliminated by our criteria: Belgium, Ethiopia, India, Nigeria, South Africa, Switzerland, and Yugoslavia (which now consists of two units). 32 Quebec and Ontario each have 24 seats which represented one-quarter of the Senate before the addition of 6 seats for Newfoundland and Labrador in 1949 and one seat each for Yukon and the Northwest Territories in 1975. Watts, ‘Asymmetrical Federalism,’ 19. 33 This derives from an 1875 federal act establishing the Supreme Court. Originally, the Act required only two justices from the Quebec bench. 34 Draft Legal Text October 9, 1992 [Charlottetown Accord], Section 36(1). 35 Ibid., Section 51A(2)b. 36 McRoberts, Misconceiving Canada, 217. 37 In addition, a section authorized the federal government to protect denominational schools rights in Quebec and Ontario. See the discussion of Section 94, in Marc-Antoine Adam, ‘Federalism and the Spending Power: Section 94 to the Rescue,’ Policy Options (March 2007), 30–4. 38 Amendments fall into two categories, one requiring unanimity and the other requiring approval by two-thirds of the legislatures representing 50% of the Canadian population. 39 McRoberts, Misconceiving Canada, 197–203. 40 ‘Tory Minister Retreats on New Deal with Quebec,’ Toronto Star, 2 April 2008. 41 Allan Gregg, ‘Quebec’s Final Victory,’ The Walrus (Feb. 2005): 51. 42 Graham Fraser, ‘New Life in an Old Quebec Doctrine,’ Toronto Star, 31 Dec. 2005. 43 Conservative Party of Canada, ‘Harper annonce le programme conservateur pour le Québec,’ 19 Dec. 2005. 44 Québec, Portail Québec, 5 May 2006. 45 In a speech to the Quebec National Assembly delivered on 30 November 2006, Premier Jean Charest welcomed the declaration but made it clear that the Quebec nation was not restricted to francophones: ‘Cette nation, elle est pluraliste, elle inclut tous les individus qui habitant son territoire et qui s’identifient à cette nation. Bien que la majorité des membres de cette nation soient francophones, la nation québécoise est aussi constituée de milliers d’hommes et de femmes en provenance de divers horizons sans égard à leur lieu de naissance, à leur origine ethnoculturelle.’ Jean Charest, ‘Les Québecois sont reconnus pour ce qu’ils ont toujours été: une nation,’ le Devoir, 1 Dec. 2006, A9.

466  Kenneth McRoberts 46 For that matter, a late November survey showed that while 64% of Quebec residents agreed that ‘Quebeckers form a nation,’ in the other regions of Canada rejection of the proposition varied at between 74% and 81% of those polled. Angus Reid Global Monitor, ‘Rest of Canada Disagrees with Quebec as Nation,’ 30 Nov. 2006. 47 Turpel, ‘Charlottetown Discord.’ 48 Spanish Constitution (Presidencia del Gobierno, 1982), Article 2. 49 Ibid., Article 3(1). 50 On the inadequacies of the Senate as a forum for representation of the Autonomous Communities, see Joaquim Tornos, ‘L’organisation territoriale de l’Espagne: l’État des autonomies,’ in Thomas Fleiner-Gerster et al., Le Fédéralisme en Europe (Barcelona: ICPS, 1992), 108–9. Also, Requejo, ‘Cultural Pluralism, Nationalism and Federalism,’ 25–6. 51 Spanish Constitution, Article 3(2). Not only does the Constitution give the Spanish state that power to establish the ‘basic legislation’ and ‘basic norms’ within which the ACs can act, but Constitutional Court decisions have tended to uphold Madrid’s claim to regulatory and supervisory powers over the Acs’ activities. See Josep Ma Valles and Montserrat Cuchillo Foix, ‘Decentralisation in Spain: A Review,’ European Journal of Political Research 16 (1988): 400. 52 The Basque Country, Navarre, Galicia, Catalonia, Valencia, and the Balearic Islands. Five of them have passed laws regulating the use of language. Agranoff, ‘Asymmetrical Federalism in Spain,’ 10. 53 To be sure, the autonomy of the ACs to act within these narrow parameters has been upheld in the courts. For instance, both the Basque Country and Catalonia have been able to defend against court challenges from Madrid measures dealing with the role of Basque and Catalan in public schools. 54 ‘They are able to levy their own taxes [133.2] but only insofar as power is delegated by the central state. The LOFCA delegates almost no taxation power, only the collection and use of some “ceded taxes.”’ Brassloff, ‘Spain,’ 35. Thus, the ACs depend almost entirely on transfers, often conditional, from the Spanish state. See Tornos, ‘L’organisation territoriale de l’Espagne,’ 117. From the outset, the Basque Country and Navarre have enjoyed a confederal type right of exclusive taxing power, based on the medieval concept of fueros. For its part, Catalonia has acquired significant taxing powers through the recent revision of its Statute of Autonomy. 55 Amendments are simply approved by the two houses of the Spanish Parliament (Cortes Generales) with possibility of a referendum (Spanish Constitution, Article 167).

Asymmetries in Canada and Spain  467 56 Luis Moreno, La federalización de España: Poder político y territorio (Madrid: Siglo Veintiúno de España Editiones, 1997), 123. Enric Fossas Espadaler notes that the Spanish system is not based on ‘a strict material division but in most cases state and AACC have jurisdiction on the same issue (legislation/execution) or the issue is divided according to certain criteria (for instance, waters or transport).’ Espadaler, ‘The Autonomy of Catalonia,’ 21). He also acknowledges that it is extremely difficult to delimit the powers of Catalonia and Madrid and notes that Catalonia’s treasury depends on state transfers. Nonetheless, he insists that Catalonia does enjoy autonomy and that its relations with Madrid are not ‘a control relation as there exists in purely administrative decentralization systems’ (ibid., 29). 57 Requejo, ‘Cultural Pluralism, Nationalism and Federalism,’ n33. 58 See the account in Brassloff, ‘Spain,’ 32. 59 Ibid., 34. 60 Robert Agranoff, ‘Asymmetrical Federalism in Spain: Design and Outcomes,’ Paper presented at the World Congress of the International Political Science Association, 21–5 Aug. 1994, Berlin, 12. 61 This discussion of Madrid’s strategies is drawn from ibid., 12–15. 62 Ibid., 11. 63 In principle, there is no asymmetry in the opportunities available to the ACs to assume powers and responsibilities. Brassloff, ‘Spain,’ 35. 64 Moreno, La federalización de España, 142, and Brassloff, ‘Spain,’ n20. 65 ‘Acuerdo de investidura y gobernabilidad,’ El País, 29 April 1996. 66 Generalitat of Catalonia Statute of Autonomy 2006, Preamble. 67 Thomas Jeffrey Miley, Recusal and the Question of Judicial Independence: Reflections on the Current Spanish Controversy in Comparative and Theoretical Perspective, Madrid, Centre de Estudios Politicos y Constitucionales, Working Paper RS 2/2008. 68 See Laxer, ‘Distinct Society for Quebec,’ and Resnick, ‘Toward a Multinational Federation.’ The notion of excluding MPs from votes that do not apply to their territory was included in the initial version of the 1893 Irish home rule bill but this ‘in and out’ provision was dropped out of concern about its impact on parliamentary majorities. The 1912 home rule bill simply reduced the numbers of Irish MPs, from 103 to 42. Michael Keating, ‘Asymmetrical Territorial Devolution. Principles and Practice,’ unpublished paper, July 1997, 15. 69 McRoberts, Misconceiving Canada, 42–4. 70 Ibid., 153. 71 By definition, such arrangements cannot be applied to all units. The Canadian debate has yielded proposals that all provinces should be deemed

468  Kenneth McRoberts ‘distinct societies’ or that courts should be instructed to take account of the particular characteristics of each province. The net effect is to negate the recognition of minority national identities that the original ‘distinct society’ clause was designed to accomplish. 72 Such sentiment may be at the root of another common argument against asymmetrical federalism: the ‘slippery slope’ argument that contends that such arrangements will only reinforce minority nationalism and make it easier for nationalists to contemplate assuming full sovereignty. The argument does not lend itself to rigorous testing. However, it can be claimed that in the Canadian case growth in separatism was still quite limited during the 1960s, when the federal government experimented with asymmetry. On the other hand, it grew substantially over the subsequent decades, as the Trudeau government moved way from asymmetry and anglophoneCanadian public opinion disavowed it through rejection of the Meech Lake Accord. Whether separatism would have grown less substantially if the federal government had maintained or even strengthened asymmetry can only be surmised. In any event, the ‘slippery slope’ argument does not comprehend the fluidity of contemporary interstate relations in settings such as Western Europe. See Requejo, ‘Cultural Pluralism, Nationalism and Federalism,’ 23. 73 McRoberts, Misconceiving Canada, Chapter 2. 74 See, e.g., Philip Resnick, Thinking English Canada (Toronto: Stoddart, 1994).

Appendix: The Future of Quebec within the Canadian Federation benoît pelletier

Preface The text that follows is a transcript of a speech I gave on 1 October 2004 as Minister of Canadian Intergovernmental Affairs in the Quebec government, at a conference held at the Université du Québec à Montréal (UQAM). The conference was organized by the Chaire de recherche du Canada en études québécoises et canadiennes, and its theme was ‘Dynamiques et enjeux politiques du fédéralisme canadien.’ Various events worthy of mention have occurred since this speech was delivered. First, since the day it was created, on 5 December 2003, the Council of the Federation has established itself in our federation’s political landscape as a viable and meaningful institution. Indeed, provincial premiers and territorial leaders have held nine official face-to-face meetings to discuss – in addition to the subjects I will mention in the text – such matters as postsecondary education and skills, sustainable development and environmental assessments, energy, international trade markets, softwood lumber, national transportation, the impact of the rising Canadian dollar, global pressures on traditional resource industries, literacy, E-government, privacy protection, a national diamond strategy, bovine spongiform encephalopathy (mad cow disease), pandemic preparedness, a national pharmaceuticals strategy, and oncology drugs. Second, in a general effort to reinforce interprovincialism and strengthen Quebec’s relations with its immediate neighbours, the Quebec government has successfully negotiated general cooperation agreements with New Brunswick (18 April 2006) and Ontario (2 June 2006). The Quebec–Ontario accord includes nine sectoral agreements and was

470 Appendix

supplemented by an important labour mobility deal, putting an end to a long-standing dispute between the two provinces. Thirdly, with regard to Canadian francophonie, the Government of Quebec has signed specific cooperation agreements with Alberta and the Yukon (14 October 2004), New Brunswick (3 June 2005), British Columbia (23 November 2005), and Ontario (2 June 2006). Fourth, since the election of Stephen Harper’s Conservative Party on 23 January 2006, the federal government has officially recognized the existence of a fiscal imbalance and has promised to address this issue before tabling its 2007 budget. Regardless of that, many political pundits and commentators still believe that there is no fiscal imbalance between Ottawa and the provinces, even if Ottawa still generates enormous budgetary surpluses. Last, since the following speech was given, Quebec has successfully negotiated numerous agreements with the federal government regarding parental leave, the federal excise tax, infrastructure, early learning and child care, and Quebec’s formal participation in all UNESCO activities. The latter two accords explicitly reiterate the principle of federal asymmetry, which was first mentioned in the September 2004 Health Accord. Benoît Pelletier 15 June 2006 ***** In this text, I shall outline the vision of the Government of Quebec concerning federative relations and define the basic guiding principles for Quebec’s prospects within the Canadian federation. In my opinion, one of these basic principles is the collective right of Quebecers to determine their own future. This is a fundamental principle. Living in a society means making active choices, choices that are revisited every day and that take the form of a common desire to achieve objectives and ideals. As Ernest Renan once said, life in a society is a daily plebiscite.1 For any society to be viable, it must share a collective will. For the state to progress, there must be a shared consensus and group cohesion. Nothing is more important than respect for democratic choices, provided that these choices are expressed clearly and freely. Canadian federalism offers Quebecers a means, a springboard, for expressing their collective identity while participating in a project that

The Future of Quebec within the Canadian Federation  471

extends beyond them and transcends them. Of course, the right to choose implies that it is possible for Quebecers to legitimately envisage paths other than federalism, namely, outright political independence from Canada. As you are well aware, those paths reflect political currents that differ from the one I espouse. The present Government of Quebec believes in federalism. It also champions the affirmation of Quebec, both within Canada and on the international scene. This affirmation of Quebec is totally compatible with federalism. It relates directly to the historical motives underlying the birth of the Canadian federation, a birth in which the existence of Quebec as a community played a crucial role. In fact, the affirmation of Quebec is embedded in the history of our federation, and is just as essential to Quebec’s present existence and its future. Quebec’s identity is at the heart of my own political involvement. This unique awareness – based for the most part on language, culture, civil law, specific institutions and a particular way of life – underlies the three key words in the report of the special committee of the Quebec Liberal Party I had the honour of chairing in 2001: Affirmation, Autonomy, and Leadership.2 These three key words still constitute the essence of the Government of Quebec’s official position in regard to Canadian intergovernmental affairs. Affirmation – because Quebec has every reason to be proud of its identity and to want to reinforce it and have it resonate both in Canada and around the world. Autonomy – because being a federalist means believing in autonomy. Indeed, federalism postulates that the provinces’ autonomy is just as important as that of the federal order of government. Quebec is an autonomous entity within the Canadian federation. The Government of Quebec is committed to defending this autonomy, and even to extending it, in part through non-constitutional means, such as the signing of administrative agreements. The current Government of Quebec defines the term ‘autonomy’ from a resolutely federalist perspective. Leadership – because Quebec must resume the leadership position that it held historically within Canada, both in its relations with other provinces – namely, interprovincialism – and in its dealings with Ottawa. Quebec’s renewed leadership role in Canadian intergovernmental

472 Appendix

relations is well illustrated by the Council of the Federation. This new interprovincial-territorial institution on the Canadian political scene was founded upon Quebec’s initiative. The Council of the Federation is the first body of its kind since the Annual Premiers’ Conference was instituted back in 1960. The Council of the Federation is a permanent forum for exchange and dialogue among the ten provinces and the three territories. In less than a year, it has already held four meetings of the premiers. Its work plan is ambitious and addresses priority issues and sectors such as health care, fiscal imbalance, equalization, environmental assessment, appointments to the Senate and the Supreme Court of Canada, the participation of provinces and territories in international negotiations, Canada–U.S. relations, and the strengthening of trade within Canada. The goal of the council is to foster the participation of the provinces and territories in the overall governance of the federation, partially by strengthening their voice in relation to the federal government, in order to achieve a better balance in federative relations. The founding agreement of the council also mentions the objective of promoting ‘relations between the governments that are based on respect for the Constitution and recognition of the diversity within the federation.’ To this objective is added, in the preamble to the agreement, the importance of ‘accepting that there are differences among the provinces and territories and that governments may have different policy priorities and preferences.’3 The council is thus not only a forum for exchange, dialogue, and concerted action, but also a channel for mutual recognition and respect for each other’s differences. Quebec is certainly no stranger to this emphasis on diversity. It has noted with interest that this aspect of the council’s founding agreement has already produced concrete results. I am thinking of the health care issue, which has been discussed extensively in the public debate and which I will address shortly. This illustrates that Quebec’s leadership is not merely a question of a common front or a battle of wills between the federal government and the provinces. It is also a way of affirming the very principles and values of federalism, which are of particular significance to the people of Quebec, within Canada. On an intergovernmental level, Quebec’s active participation in federative life also translates into a commitment to intensify the province’s bilateral collaboration with its provincial partners. Quebec is interest-

The Future of Quebec within the Canadian Federation  473

ed in revising and updating existing cooperation agreements and in signing new ones. Global agreements are being negotiated with two of the three provinces bordering Quebec, particularly Ontario and New Brunswick. Negotiations are also underway with Alberta, the Yukon, and British Columbia to establish cooperation related to francophonie. Agreements of this nature already exist with Saskatchewan, Manitoba, Prince Edward Island, and Nova Scotia. This cooperation regarding Francophone affairs reflects a much broader desire to renew and deepen Quebec’s involvement in Canadian and North American francophonie. We see Quebec as a player within Canadian francophonie, not outside it. We want to develop a new solidarity with other Francophones. This new relationship would take the form of closer ties and common efforts to assert the French Fact in North America. Since taking office, we have followed this path. I am especially satisfied with the concrete outcomes of the Forum de la Francophonie organized by our government in the spring of 2003, in Quebec City. Leadership in intergovernmental relations, cooperation, affirmation, autonomy, solidarity with other Francophones – these aspects of Quebec’s policies reflect a choice to make a noteworthy contribution to Canada while adhering to certain general guidelines. Briefly, these guidelines are as follows: • In intergovernmental matters, Quebec believes in collaborating with its partners in the federation whenever possible and appropriate. This is not always the case. Indeed, it would be wrong to establish an intergovernmental process as an absolute dogma. Disagreements can arise; consensus may not be possible. There may even be situations where collaboration is not desirable, where such collaboration might encroach upon one of Quebec’s areas of exclusive jurisdiction. However, when an opportune situation arises, we must be ready to join forces in order to make progress. • We must bear in mind that respect for, and recognition of, Quebec’s specificity and unique identity within the federation are of fundamental importance and are essential to Quebec’s participation in Canada. • As the current state of our federalism eloquently demonstrates, Quebec considers its autonomy within the federal system to be indispensable. And this can be easily explained. The fact that the

474 Appendix

people of Quebec form a minority within the Canadian federation gives special importance to Quebec’s autonomy, as derived from the division of powers. There is a tendency within Canadian federalism to minimize the importance of the division of powers by invoking the current context of globalization and, in particular, the need for efficiency and integration. Such an approach loses sight of the particular value of the distribution of powers as a means of acknowledging the sphere of autonomy that is essential to Quebec in the minority situation that is specific to it and rendering that autonomy possible. If the importance of the division of powers were not recognized, we would be deprived of a formidable tool for developing the intrinsic diversity within the Canadian federation, a diversity that is most evident in Quebec’s presence within Canada. The celebration of diversity is a challenge currently confronting numerous multinational political systems. Why should Canada be excluded from this debate? To declare the distribution of powers outmoded is to declare federalism obsolete, because, from a legal standpoint, the notions of federalism and the distribution of powers are inextricably linked. Furthermore, the division of powers, which defines and guarantees a sphere of autonomy for the provinces, will remain relevant as long as a national minority like Quebec exists within the federation. For autonomy to be effective and to provide real room for manoeuvring, it must be accompanied by the required financial resources. Is it necessary to stress that this issue constitutes a real challenge for the Canadian federation? The fiscal imbalance, in favour of the federal government and to the detriment of the provinces, is an extremely worrisome structural problem for which a solution must be found. The fiscal imbalance affects the provinces’ capacity to innovate. With the financial means currently at the disposal of the federal government, this capacity is in danger of being gradually transferred to Ottawa – clearly a prospect that does not bode well for Quebec’s affirmation. Some politicians at the federal level persist in denying the existence of a fiscal imbalance, claiming that the provinces have the same taxation powers as the federal government. According to them, all that the provinces need to do to increase their revenues is to raise their taxes and manage their finances more effectively. This argument is simplistic primarily because the taxpayer’s ability to pay is limited. In addition, a province that overtaxes its citizens soon loses its competitive edge in

The Future of Quebec within the Canadian Federation  475

a highly integrated North American market. Lastly, in order to identify the existence of a fiscal imbalance, what needs to be examined is not the power to tax, but rather the gap between federal and provincial revenues, on the one hand, and what it costs both levels of government to assume their constitutional responsibilities, on the other. Now, as we are well aware, the provinces have particularly heavy constitutional jurisdictions – including health care, education, social affairs, and municipal affairs – that place a greater burden on them financially. They are also, for the most part, dependent on transfers from the federal government, which does not hesitate to impose conditions. This unfortunately subjects the provinces to the dictates of Ottawa, forcing them to revise their priorities. Such a dynamic is unhealthy and goes against the very grain of the federative ideal and spirit. It is also at the heart of another fundamental problem: the alleged federal spending power in provincial jurisdictions. Year after year, the Government of Canada underestimates its budgetary surplus and shrewdly tries to hide its real revenues from its provincial and territorial counterparts until the very last moment. Let me state this clearly: Quebec cannot continue to struggle to make ends meet in order to administer its own existing programs while the federal government has all the means necessary to plan for the future, even in areas of provincial jurisdiction. It is essential for Quebec to retain its capacity to innovate and effectively represent a society that is fully involved in the major current issues. Fiscal imbalance is thus a matter of prime importance, as evidenced by Quebec’s intergovernmental activity. We hope that the federal-provincial-territorial conference, which will be held on 26 October 2004 in order to discuss equalization and the financial pressures facing the provinces, will lead to concrete solutions in this regard.4 Fiscal and financial balance, like respect for the division of powers, is an essential objective to ensure the harmonious evolution of Canadian federalism and to allow Quebec to fully exercise its constitutional autonomy, and thus to assert its identity. Federative asymmetry is also an instrument for empowering the expression of Quebec’s uniqueness. This brings me to the Health Accord, signed at the federal-provincialterritorial conference held in Ottawa in September 2004. Many commentators have considered this to be a landmark event for Canadian federalism. In Quebec, the general population viewed the Accord as historic and ground-breaking. This was hardly surprising. Besides obtaining agree-

476 Appendix

ment on the issue of financing, the Government of Quebec succeeded in defending its exclusive powers in the area of health care and convinced its partners in the federation to recognize the principle and practice of asymmetrical federalism in Canada according to the following terms: ‘asymmetrical federalism, that is, flexible federalism that notably allows for the existence of specific agreements and arrangements adapted to Quebec’s specificity.’5 This is how I delineated asymmetry in the 2001 report mentioned above: The federal formula does not rule out asymmetry in relations between the partners in the federation. Federalism can be a flexible system if the partners are themselves capable of flexibility. In the context of intergovernmental relations, asymmetry is a way of managing federal-provincial relations harmoniously by taking into account the specificities of each component in our federation as well as the need for coherence within Canada.6

In fact, asymmetry is a tribute to the flexibility and adaptability of the federal system, in its classic and universal form. Asymmetry epitomizes the essential idea that federalism not only consists in the sharing of common resources, values and ideals, but is also based upon the diversity of its constituents and their capacity to assert their originality and inherent right to be different. In short, asymmetry is not merely compatible with the federal principle; it is intrinsic to federalism. Our forefathers recognized from the outset that the diversity of the elements and identities that make up Canada is a source of wealth for the country, rather than an impediment to its development. The validation of this diversity, of the multiplicity of realities Canada comprises and of the variety of ways of reaching our common objectives, constitutes the essence of federalism and the main reason for the rejection of a unitary model in favour of a federal model when Canada was created in 1867. Asymmetry, as the ideal vehicle of flexibility, is an integral part of the Canadian personality, given our history, our geography and our aspirations. Long before anyone thought of describing Canadian federalism formally and officially as ‘asymmetrical,’ as was done in the 2004 Health Accord, the country had developed under the aegis of asymmetry and the healthy expression of its diversity. The Human Development Report,

The Future of Quebec within the Canadian Federation  477

published by the United Nations, cited asymmetry as a fundamental characteristic of our federal system.7 It should be understood that, in Canada, asymmetry manifests itself in several ways. First, there is constitutional asymmetry. This is expressed in part in Section 133 of the Constitution Act, 1867,8 regarding the use of French and English in Quebec and at the federal level; in Section 93, on denominational schools; and in Section 94, on the standardization of private law for all the provinces except Quebec. This is also expressed in Section 23 of the Manitoba Act, 1870,9 which deals with institutional bilingualism in that province; in Subsections 16(2) to 20(2) and Section 16.1 of the Canadian Charter of Rights and Freedoms,10 which relate to official bilingualism in New Brunswick; as well as in the non-applicability in Quebec of paragraph 23(1)(a) of the Charter, concerning minority-language education rights. To this list could be added numerous other constitutional or purely legislative measures illustrative of asymmetry, such as Subsection 23(6) of the Constitution Act, 1867,11 concerning the appointment of senators, or Section 6 of the Supreme Court Act,12 which guarantees Quebec one-third of the judges on the Court. There is also financial asymmetry, manifested in federal transfers to the provinces, which, for a variety of reasons, are not necessarily the same from one province to another. The most notable example of financial asymmetry is obviously equalization. Asymmetry can also be legislative. This was confirmed by the Supreme Court of Canada in the Sheldon ruling of 1990, concerning federal jurisdiction over criminal law.13 Furthermore, the interpretive clause in the last paragraph of Section 91 of the Constitution Act, 186714 is a reminder that a federal jurisdiction may, in certain instances, take into account local considerations. This factor could warrant an asymmetrical legislative adjustment. Finally, there is administrative asymmetry. Examples include tax collection by Quebec (1954); the creation of the Quebec Pension Plan (1964) and the Caisse de dépôt et placement du Québec (1965); the right to opt out of certain federal programs with financial compensation, including tax transfers (1965); the various agreements between Ottawa and Quebec on immigration, including the McDougall-Gagnon-Tremblay Agreement (1991); the direct relations between Quebec and France (since 1965); the participation of Quebec and New Brunswick in the international Francophonie (1971 and 1977 respectively); the collection of the GST by Quebec (since 1990–91); and the manpower-train-

478 Appendix

ing agreements, signed by Quebec and a number of other provinces (1997). The 2004 Health Accord falls under this last category. Its asymmetry has no bearing on the Constitution. Furthermore, this asymmetry is available to all the provinces, although only Quebec has taken advantage of it in the area of health care. In light of these examples, it is clear that asymmetry is a formula that has been used repeatedly in the past and that exemplifies the flexibility and adaptability necessary for the successful management of Canada. One of the greatest benefits of the Health Accord is the fact that the principle of asymmetry has been set down in positive and explicit terms, making it a key element in the long-term development of Canada as a whole. Of course, we are well aware that supporters of a centralist view, still present in Ottawa and elsewhere in Canada, see asymmetry as a threat to the equality of the provinces – and even to that of individuals – and as a serious breach of the common good in Canada, of which, in their view, the federal government is clearly the only guardian. These centralists misconstrue the true meaning and spirit of federalism. They are unaware that asymmetry in itself, as well as the flexibility and diversity it supports, are, on the contrary, effective means for promoting the real values of federalism. Accommodation of community preferences within a federal state and awareness of these political entities’ needs demand a degree of flexibility. History has demonstrated that, far from undermining national unity and dividing countries, the adoption of asymmetrical measures enables decentralized entities (provinces) to coexist harmoniously with the central authority, thus reducing unwarranted tensions, counterproductive confrontations, and even demands for secession. This approach has worked in Switzerland, for example. Spain, Italy, and the United Kingdom are increasingly resorting to asymmetry, even if these countries still cannot be defined as federal states. On the contrary, perpetual conflict among federative partners, constraint exercised by one order of government over another, and an uneven distribution of political power and financial resources have, more often than not, led to the dissolution of federations, as in the former Soviet Union and Yugoslavia. In Quebec, the hard-line approach to federalism has contributed largely to feeding the flames of separatism. This intransigence has driven thousands of Quebecers into the secessionist camp, Quebecers who had sought, in good faith, a reform of

The Future of Quebec within the Canadian Federation  479

Canadian federalism that would better respond to their collective aspirations. That is why I believe that we must not merely accommodate differences in Canada, but rather elevate them as a positive value, while at the same time preserving group cohesion and the integrity of the federal principle. Asymmetry is not without limitations. It cannot be so broad that it would threaten to rupture the federative link, foster the dismemberment of Canada or deprive it of the cohesiveness that is essential to its very existence. In the end, we must continuously strive to find a balance between so-called centralist interests and the more particular concerns of the provinces, including Quebec, by way of a political and constitutional structure that allows and encourages the collaboration of the two orders of government, whenever that is possible and beneficial. In this vein, we should all be aware that good faith, solidarity, the joint assumption of risks and of our economic and social fate, the sharing of information and expertise, as well as full participation in the development of Canada, must continue to be considered as federative prerequisites. In other words, asymmetry entails its share of political and moral responsibility towards all Canadians. Be that as it may, with the 2004 Health Accord, Quebec achieved more than just the right to opt out with equitable financial compensation, and more than a simple footnote at the bottom of a page. Rather, it achieved a unique agreement, adapted to its own needs, signed at a conference involving all the federative partners. Quebecers had good reason to see this recognition of asymmetrical federalism as a gain for the future of Quebec within Canada. However, my concept of the affirmation of Quebec within federalism is not limited to the Canadian context. Faced with the challenges of globalization, there is a real need for a distinctively Québécois contribution on the international level. Of particular interest to Quebec are issues such as cultural and linguistic diversity. Quebec’s active participation in such debates seems to me not only acceptable within our federal structure, but also necessary. Quebec has been a pioneer in the international activity of non-sovereign states. It maintains direct bilateral relations with France, asserts its capacity to sign its own international agreements in its areas of jurisdiction, possesses a significant international network of delegations and offices, acts in its own name as a participating government within the institutions of the international Francophonie and, finally, is interested

480 Appendix

in numerous international forums whose work is related to its jurisdictions. In a general sense, it has its own international policy, which constitutes one of the methods used to promote the interests of Quebecers. Discussions are underway at the intergovernmental level concerning the role of the provinces in negotiating international treaties and in matters concerning Canada–U.S. relations. Quebec is, naturally, involved in these discussions. One of its priorities is the conclusion of bilateral agreements with the federal government when international issues or forums related to Quebec’s interests are involved. In international matters, Quebec’s specificity operates in a number of ways. It is first and foremost a collective specificity: the development of Quebec’s international policy is in fact often considered a powerful demonstration of its modern affirmation. There is also a political specificity connected with Quebec’s role in making its identity felt at home and abroad. Concretely, there is institutional specificity reflected in the existence of its Ministry of International Relations and the development of a strong international network. And there is historical specificity, consisting of special bilateral agreements between Ottawa and Quebec. The international issue is not the government’s only medium-term priority. Earlier, I referred to the need to address the fiscal imbalance. We must also conclude the discussions concerning parental leave, another social issue in which Quebec is asserting itself by developing its own innovative approach. We also consider the issue of telecommunications to be a priority. I would hope that an administrative agreement could clarify the roles and responsibilities of the Quebec and federal governments in this key sector. The whole issue of the appointment of judges to the Supreme Court of Canada also concerns us. It is high time that Quebec and the other provinces that so desire directly participate in the process of appointing judges to Canada’s highest court, where important issues, often of a constitutional nature, are debated and settled. Concerning possible federal attempts to interfere in Quebec’s jurisdiction over municipal affairs, I would like to mention that the Government of Quebec intends to be recognized by Ottawa as the one and only representative in that area. It should be remembered that Quebec possesses exclusive jurisdiction over municipal and local affairs under the Canadian Constitution. These powers must be fully respected. Ottawa can play with the terminology and talk about ‘urban affairs’ or ‘communities,’ but that in no way alters the reality: Quebec’s jurisdiction is at issue here, and we will defend it vigorously.

The Future of Quebec within the Canadian Federation  481

Within the Canadian federation, Quebec continues to build its future. Quebec’s participation in Canada’s evolution certainly involves a commitment to a broader dynamic. However, this participation must continue to foster the affirmation of Quebec’s unique identity. If it is true that, on the whole, Quebec is enriched by the Canadian experience – a fact that many Quebecers acknowledge – it is equally true that Canada is enriched by the presence of Quebec. Quebec’s specificity is of value not only to Quebecers, but to all Canadians. Clearly, Quebec is not, and never will be, a province like the others. Notes   1 Ernest Renan, ‘Qu’est-ce qu’une nation?’, in Michel Sarrabournet, ed., Les nationalismes au Québec du XIXe au XXIe siècle (Québec: Les Presses de l’Université Laval, 2001), 361.   2 Quebec Liberal Party, A Project for Quebec: Affirmation, Autonomy and Leadership, final report of the Special Committee of the Quebec Liberal Party on the Political and Constitutional Future of Quebec Society, chaired by Benoît Pelletier, October 2001, 147 pages.   3 The founding agreement of the Council of the Federation is available for con­­ sultation on the following Web site: http://www.councilofthefederation. ca/pdfs/COF_agreement.pdf (Web page last consulted on 27 January 2009).   4 Unfortunately, the outcome of this conference was not what the provinces and territories necessarily hoped for. A key aspect of the new framework imposed by the federal government is that total equalization payments were increased by $2 billion, to $10.9 billion, in 2005–06. It was then estimated that this amount would increase by 3.5 per cent annually until 2013–14. Establishing a fixed amount for this program represents a fundamental departure from the long-standing approach of having overall payments determined each year according to a formula.   5 The Canada–Quebec Agreement on Health Care, 16 September 2004.   6 See N2, A Project for Quebec, 55.   7 United Nations Development Program (UNDP), Human Development Report 2004: Cultural Liberty in Today’s Diverse World, 2004, 50.   8 The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3.   9 Manitoba Act, 1870, 33 Victoria, c. 3 (Canada). 10 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, which constitutes schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11; R.S.C. 1985, App. II, No. 44.

482 Appendix 11 N8 supra. 12 Supreme Court Act, R.S.C., 1985, c. S-26, Section 6 (at least three justices from Quebec). 13 R. v. S., [1990] 2 S.C.R. 254. 14 N8 supra.

Contributors

michael burgess is a professor in the Department of Political Science and the director of the Centre for Federal Studies, Kent University, Canterbury. marie-joie brady is a PhD candidate in the School of Political Studies at the University of Ottawa linda cardinal is a professor in the School of Political Studies, University of Ottawa. jean-françois caron is a PhD candidate in the Department of Political Science, Université Laval. marc chevrier is a professor in the Department of Political Science, Université du Québec à Montréal. joseph facal is a visiting professor, École des Hautes Études Commerciales, Montreal. sarah fortin is the research director, Institute for Research on Public Policy, Montreal. alain-g. gagnon is a professor and Canada Research Chair in Quebec and Canadian Studies in the Department of Political Science at l’Université du Québec à Montréal. dimitrios karmis is an associate professor in the School of Political Studies, University of Ottawa.

484  Contributors

guy laforest is a professor in the Department of Political Science, Université Laval. andrée lajoie is a professor in the Faculty of Law, Université de Montréal. kenneth mcroberts is the principal of Glendon College and a professor of in the Department of Political Science, York University. alain noël is a professor in the Department of Political Science, Université de Montréal. martin papillon is an assistant professor in the School of Political Studies, University of Ottawa. benoît pelletier is a professor in the Faculty of Law, University of Ottawa. françois rocher is a professor in the School of Political Studies, University of Ottawa. michel seymour is a professor in the Department of Philosophy, Université de Montréal. luc thériault is a professor in the Department of Sociology, University of New Brunswick. luc turgeon is an assistant professor in the School of Political Studies, University of Ottawa. yves vaillancourt is a professor in the School of Social Work, Université du Québec à Montréal. catherine vallières-roland is a PhD candidate in the Department of Political Science, Université du Québec à Montréal. josé woehrling is a professor in the Faculty of Law, Université de Montréal.