Subject: THE TRUDEAU ESSAY - COMPLETE TEXT: PART 1/2

From: [email-masked] (R Ross Holder Jr)
Date: Sun, 4 Oct 1992 02:26:35 GMT

Pierre Elliott Trudeau

					on

				The Consitution of
				      Canada

* An excerpt from the September 28, 1992 issue of Maclean's Magazine
         - Reproduced with verbal permission of Maclean-Hunter Publishing by...

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R. Ross Holder, Jr.  INTERNET: [email-masked]  (Winnipeg, Manitoba)
       Department of Philosophy                The University of Manitoba
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I. PRIDE AND MONEY

Commenting on Quebec nationalist politics in the first issue of [1mCite
Libre[0m 42 years ago, I wrote, "The country can't exist without us, we
think to ourselves.  So watch out you don't hurt our feelings...We depend on
our power of blackmail in order to face the future...We are getting to be
a sleazy bunch of master blackmailers."

Things have changed a lot since then, but for the worse.  Four decades ago, all
Duplessis was asking for his province was that it be left in peace to go its
own slow pace.  His rejection of proposals for constitutional reform was
intended mostly to block an updating of Canada's economic and social institu-
tions.  And Quebec's "no" was forumulated by a relatively small political
class.  In today's Quebec, however, the official blackmail refrain gets backup
from a whole choir of those who like to think they are thinking people: "If
English Canada won't accept Quebec's traditional, minimum demands, we'll
leave..."

Leave for where?  What for?

Consider that in the past 22 years the province of Quebec has been governed by
two premiers.  The first was the one who coined the phrase "profitable federal-
ism."  We'll stay in Canada if Canada gives us enough money, he argued.
However, adds the Allaire report that he commissioned, the rest of Canada must
hand over nearly all its constitutional powers, except of course the power to
give us lots of money.  And to put a bit more kick in the blackmail, no
opportunity is missed to point out the Quebec's (alleged) right of self-
determination is written into the premier's party program.  This is the
premier who prides himself in not practising "federalism on bended knee."

The other premier was the one who invented "soverignty-association."  He
demanded all the powers of a sovereign country for Quebec, but was careful to
arrange for the sovereign country not to be independent.  Indeed, his
referendum question postulated that a sovereign Quebec would be associated 
with the other provinces and would continue to use the Canadian dollar as
legal tender.  Money, money, money!

So for 22 years the Quebec electorate has suffered the ignominy of having to
choose between two provincial parties for whom the pride of being a Quebecer
is negotiable for cash.  And if by some stroke of ill forunte the rest of
Canada seems disinclined to go along with the blackmail, as happened over
the Meech Lake accord, it is accused of humiliating Quebec.  In Quebec,
humiliation is decidedly selective.

Except for a small handful of dyed-in-the-wool separatists, together with the
sprinkling of Montrealers who exercised their vote in favor of the Equality
Party, just about all the cream of Quebec society approves of this shameful
horse trading, and so without batting an eye has backed one or the other of the
above-mentioned premiers for 22 years.

Artist in general parade as [1mindependantistes[0m, but want the Canadian
government to keep giving them money.  Big businesspeople and professionals
endorsed the independence blackmail over the Meech affair, but with the
economic crisis worsening are rediscovering advantages to "profitable
federalism."  The francophone media line up in great numbers on the side of
sovereignty, but remain faithful to their hero and soft-pedal real independ-
ence because of the costs it would entail.  Political scientists (and their
students, of course), instead of analysing this spineless behaviour with
scientific detachment, subscribe to it almost unanimously; some openly advocate
the knife-to-the-throat negotiations with English Canada, maintaining that
with a certain kind of independence, Quebecers could continue to elect federal
members of Parliament (from whence come equalization payments).

Curiouser and curiouser, as Alice said.  Want more examples of this ludicrous
political thinking?

*  In 1964 and 1971, Quebec premiers scuttled two constitutional agreements
that they had signed (Fulton-Favreau) or drafted and promised to sign
(Victoria).  In Quebec they were cheered.  But when the premiers of two other
provinces refused to back the 1987 Meech Lake accord, which they had neither
negotiated nor signed, it was claimed that Quebec had been hurt and humiliated
by the rest of the country.

*  A Canadian prime minister is accused of having broken a promise made to
Quebecers during the referendum of 1980, whereas the words interpreted as a
promise were in fact addressed to the other provinces to urge them to
resume constitutional negotiations after the referendum.

*  Seven provinces that approved the repatriation of the Constitution in
November, 1981, are accused of betrayal (on the night of Nov. 4, the so-called
night of the long knives), after forming a common front with Quebec in April,
1981, to block the repatriation project.  The truth is that during the neg-
otiations on the morning of Nov. 4, it was the premier of Quebec who broke
ranks with the other provinces of the Group of Eight and left them out in the
cold.

*  In 1992, the premier of Quebec considers a constitutional veto for Quebec
a matter of life and death; yet in 1971 he himself rejected this veto when the
federal government and the nine other provinces offered it on a silver tray.
And his successor, who also considered Quebec's veto sacred, turned it down
several times between 1978 and 1981; he even went to the Supreme Court to
prevent the federal government, which had the support of Ontario and New
Brunswick, from putting a veto for Quebec in the Constitution.

*  Once the Supreme Court had defined the rules of the game, the repatriation
of the Constitution was carried out in strict accordance with the rule of law
and respect for convention; furthermore, it was backed by a weighted 65 per-
cent off the combined totals of Quebec's members of Parliament in Ottawa and
the Quebec National Assemly.  Yet official Quebec history denounces the
operation as "strong-arm tactics," and a number of worthy individuals
(including a former federal cabinet minister who had supported the operation)
have discovered retroactively that it had humiliated them.

In short, Quebec governments had blocked all Canadian attempts at repatriation
since 1927, and here was a separatist Quebec government trying to do it again
in 1980.  The premier of Quebec, they say, loved to play the game.  Well, he
played at referendum and lost.  He played at alliances and lost.  He played
the Supreme Court game and lost.  Finally, he played at getting votes from
elected representatives and lost.  How have Quebec's nationalist thinkers
explained this succession of failures?  Since it is out of the
question for them to consider that a Quebec government might have
played its cards atrociously, they have had to distort history once again
in order to blame it all on some imaginary betrayal.

So it goes that, with myths and delusions, the Quebec nationalist elites
falsify history to prove that all Quebec's political failures are someone
else's fault: the Conquest, the obscurantism of Duplessis's time, slowness to
enter the modern age, illiteracy, and all the rest.  It is never our leader's
fault; it has to blamed on some ominous plot against us.

II. THE DISTINCT SOCIETY

The same glaring lack of professionalism is in evidence when nationalist
thinkers in Quebec have used terms like "distinct society," which succeeded
"sovereignty-association," which followed "equality or independence," which
was preceded by "special status."  None of these terms stands up to serious
scrutiny.

The latest variation, the distinct society, turned up in post-referendum
negotiations in 1980 when the premier of Quebec had to invent something to
replace sovereignty-association, which had gone down with the referendum.
The frivolity of the notion becomes apparent if we recall that its author
considered his province so indistinct that he allied it with the other
provinces of the Group of Eight in April, 1981, when all eight of them
formally declared themselves equal to all the others, and approved an
amending formula by which Quebec gave up its right of veto.  Nevertheless,
the phrase "distinct society" continues to be a hit.

That Quebec is a distinct society is totally obvious.  The inhabitants of the
province live in a territory defined by its borders.  The majority speak
French.  They are governed under a particular system of laws.  And these
realities have been pivotal in the development of a culture which is uniquely
theirs.

These are inarguable facts, arising from two centuries of history marked
by intense struggles and juridico-political stubbornness.  The produced the
Canadian Constitution of 1867, whose federative rather than unitary form
was imposed by French Canadians, led by Sir George-Etienne Cartier, on other
Canadians.  It was precisely this federalism which enabled and encouraged the
development in Quebec of a province that is a distinct society.

This Constitution also gave birth to nine other provinces, all of them
distinct from the others by reason of their territorial borders, their
eithnic composition, their laws, and hence their cultures.  (A society
cannot be distinct in relation to another, in fact, without that other
being distinct in relation to the first.)

Nonetheless, all these distinct societies share a considerable heritage,
despite misconceptions to the contrary.  Much is made of the fact, for
example, that the civil law is the law in Quebec, wheras common law
applies in the other provinces.  Yet, however important the Civil Code may
be, in rality it occupies a very small place in the toal picture of
provincial laws by which we in Quebec are governed.  Just like the other
provinces, Quebec has enacted a vast number of statutory laws; they apply
to all aspects of our collective lives and are the product of a juridicial
culture far more closely related to that of the other provinces than to the
laws of New France or the Napolenoic Code.

At any rate, it is a truism if not a platitude to assert that Quebec is a
distinct society, since the Constitution we adopted in 1867 has permitted
it to be a distinct society.  Since this is constitutionally recognized
already, why are so many Quebec politicians, public law experts and business-
people clamoring to have it inserted in the Constitution all over again?  And
why do they say they are humiliated when people wonder why this is so
necessary?

Because, they say, the Constitution of 1982 recognizes the collective rights
of other communities: ancestral rights of native peoples, the multicultural
heritage of many newer Canadians, even women's rights.  So why such niggard-
liness when it comes to writing into the same Constitution "the promotion
of Quebec as a distinct society"?

This is gross sophistry.  Unlike Quebecers, neither the native peoples nor
the "multiculturals" nor women are collectivities defined by a specific
territory and enjoying executive, legislative and judicial powers.  Conse-
quently, the Constitution does not give them, as collectivities, any
specific jurisdictional power to "promote" their distinct societies.  The
only effect of these charter provisions is to give individuals belonging
to these collectivities an additional judicial guarantee of protection
against any interpretation of the charter whereby their rights could be
overlooked.  Somewhat in the same fashion, the charter has given to members
of the French-Canadian collectiviy scattered throughout Canada not the
power to have the courts insist on the equality of French with English, to
the extent guaranteed by the charter.

On the other hand, when the words "promotion of Quebec as a distinct society"
are proposed for insertion either in the body of the Constitution or in the
charter, they would apply to a province - that is, a constitutional entity
with power to make laws, give effect to them and have the courts impose
respect for them.  The courts will be called upon to define these words.
First, they will need to determine what new powers the Constitution intends
to give to Quebec in order to better enable it to "promote its distinct
society."  They will also need to consider how the province of Quebec is
different from the other provinces, all of which are distinct societies, and
all of which are empowered by the Canadian Constitution to promote the
interests of their respective populations.  Then they will ponder the word-
ing of the proposed insertion whose purpose is to guide their interpretation
of the charter: "'distinct society'...[1mincludes[0m a French-speaking
majority, a unique culture, and a civil law tradition."

Now the consequences become clear.  The charter whose essential purpose was
to recognize thenceforth that in the province of Quebec these rights could
be overridden or modified by provincial laws whose purpose is to promote
a distinct society and more specifically to favor "the French-speaking
majority" that has "a unique culture" and "a civil law tradition."  There is
a very good chance, then, that Quebecers of Irish, Jewish or Vietnamese
origin - even if the speak perfect French - would have trouble claiming to
belong to this "distinct society" in any attempt to protect their fundamental
rights as individuals against discriminatory laws enacted in a jurisdiction
where they are in a minority.  And even an "old stock" Quebecer would
risk losing his fundamental rights if he were rash enough to pit them
against Quebec laws passed for the promotion of "collective rights."

--------------------------------END OF PART I----------------------------------
-- 
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R. Ross Holder, Jr.  INTERNET: [email-masked]  (Winnipeg, Manitoba)
       Department of Philosophy                The University of Manitoba
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