Opinion: Mere symbolism? Mere statements of fact? In a constitution there is no such thing

Here we go again. As if growing deficits, resurgence of inflation and energy struggles hadn’t produced enough of the thrill of the 1980s, we seem determined to reignite the constitutional wars. Have we learned nothing since? Or have we just forgotten everything?

It was expected that Bill 96, Quebec’s new language law, would be wrapped up in the notwithstanding clause, further stripping the province’s minorities of Charter of Rights protections. What was not planned was the insertion of two clauses supposed to amend the Constitution of Canada: one declaring that “Quebecers form a nation”; the other, that the “common language” of this nation is French, “the only official language of Quebec”.

We are used to Quebec governments ignoring the Constitution, on everything from language rights to secession. But this is the first time I remember an attempt to rewrite it – unilaterally, that is, without even notifying its constitutional partners. Once, Quebec requested formal constitutional recognition from the rest of Canada. Now he is going to impose it on us.

What hasn’t changed, however, is the fatal ambiguity of what’s on offer. As with ‘distinct society’, so with ‘nation’, ‘common language’ and ‘official language’: either the proposed changes mean something or they don’t. Either they will have some impact on how the courts interpret Quebec’s constitutional claims, or they won’t. Either they will give new powers to the province, undermine minority rights, or both, or they will not.

Let’s take the most benign assumption first: that it’s all just empty symbolism, mere words, shiny trinkets to appease nationalist nerves. What is the nature of this symbolism, so that it is added to our fundamental law? When we say “Quebecers form a nation”, what do we mean?

For all the weight attached to that word, nation, it is surprisingly elusive in definition. A nation doesn’t necessarily imply a nation-state, of course, but neither does it necessarily mean a group of people with a common history, language, or culture. It can mean any group that has something in common. Leaf Nation. Ford Nation.

Of course, “everyone knows” that Quebecers form a most exalted nation. But if it is so obvious that it is hardly worth mentioning, how is it also so urgent that it be formally translated into the Constitution? It wouldn’t be worth it if it weren’t meant to express something deeper than it sounds – something that isn’t said.

So: “Quebecers form a nation. Question: All Quebecers, or only a few? Is the Quebec nation defined, as is often asserted, in terms of the language and culture of the majority? Or does it extend, as is so often asserted, to all those who live in Quebec? If it were the former, it would suggest a certain, say, exclusivity – as if one-fifth of the province’s population were not “real” Quebecers. But if the latter – if the Quebec nation encompasses at least two languages ​​and multiple cultures – what distinguishes it from the Canadian nation? If the comparison isn’t too offensive.

At least, this time, we have a little clarity: “the common language of the Quebec nation”, says the other of the two proposed amendments, is French. Not just “official”, a matter of state policy, but common: a matter of description, even definition. If the Quebec nation is defined by the common language of French, what becomes of those who do not correspond to the definition? Is this really something we want entrenched in the constitution?

But you say that this is only a sociological statement of fact: most Quebecers speak French. What’s wrong with saying that? Isn’t it the function of a constitution, as Benoît Pelletier, professor of law at the University of Ottawa (and former Liberal minister of Quebec), has said, “to be the mirror of society”? ?

God no. A constitution is supposed to provide us with the tools to govern ourselves, as well as the principles by which we hope to be governed. To divert it from this objective, from prescriptive to descriptive, from firm commitments to principles to bland statements of fact – the majority language of Quebec is French, its main exports are aircraft, aluminum and wood products – is not just off the mark, but hostile.

“Statements of sociological fact” take on special significance when they are made in a legal and political context. For example, a sociologist could have observed without controversy that members of ethnic minorities voted no disproportionately in the 1995 referendum and, as such, they can be said to have provided the margin of victory for the federalist camp. But when Jacques Parizeau said it on referendum night, it meant something quite different, didn’t it?

Even as a symbolism, therefore, the proposal has unfortunate connotations, to say the least. But then, it is clearly intended as something more than mere symbolism, as its main proponents have been kind enough to tell us.

In this case, we run into all the usual objections. Quebec has the power under the Canadian constitution – section 45 of the Constitution Act, 1982, to be precise – to amend its own constitution. But it cannot do so in such a way as to override or impinge on other articles of the Constitution. It can officially declare itself unilingual as long as it wants, but the fact remains, under article 133 of the Constitution of 1867, that English and French have equal status in its legislature and its courts. Nor can he change that, under another article of the constitution, without the approval of the federal parliament.

As for constitutionalizing Quebec’s “nation” status, it would arguably be subject to the general amending formula — Parliament plus seven provinces with 50% of the population — at least as far as the distribution of powers is concerned. Would that be? To quote Professor Pelletier again, “everything depends on the meaning given to the verb ‘affect’. ” Enough.

At best, the proposed amendments are therefore unconstitutional. At worst, they would rewrite the constitution, not only for Quebec, but for all of Canada. It is not surprising to see the Government of Quebec trying this. What is surprising is to see federal politicians, including the prime minister and the leaders of the other two main opposition parties, rushing to endorse it. Rather than defending Canada, minority rights, the constitution and the rule of law, they sacrificed them all in an instant, on the altar of something much more sacred: winning seats in Quebec.

But no, that’s not surprising either.

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