Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper's Open Federalism

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1 Nationalism and Ethnic Politics ISSN: (Print) (Online) Journal homepage: Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper's Open Federalism Jean-François Caron & Guy Laforest To cite this article: Jean-François Caron & Guy Laforest (2009) Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper's Open Federalism, Nationalism and Ethnic Politics, 15:1, 27-55, DOI: / To link to this article: Published online: 25 Feb Submit your article to this journal Article views: 1550 View related articles Citing articles: 3 View citing articles Full Terms & Conditions of access and use can be found at Download by: [ ] Date: 30 January 2016, At: 20:29

2 Nationalism and Ethnic Politics, 15:27 55, 2009 Copyright Taylor & Francis Group, LLC ISSN: print / online DOI: / Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper s Open Federalism JEAN-FRANÇOIS CARON and GUY LAFOREST Université Laval Since the end of the Second World War, principles of diversity and multiculturalism have increasingly been codified in international law. The present article takes a closer look at the evolution of Canada s attitude towards the recognition of its multinational character over the past 25 years. The article shows that the more recent idea of open federalism put forward by Prime Minister Stephen Harper s government as a recognition of multinationalism closely resembles the monist idea of the state that was promoted by former Prime Minister Pierre Elliot Trudeau. Thus, contrary to what is being portrayed in political discourses, nothing much has changed over the last 25 years. Stephen Harper s open federalism remains largely inspired by philosophical elements of monism and does not contribute to making Canada a truly multinational state. INTRODUCTION As observed by Will Kymlicka, the last 40 years have witnessed the codification in international law of the principles associated with the recognition of multiculturalism understood in the broadest sense. He offers the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the United Nations in 1992 and the UN s efforts on a Declaration on the Rights of Indigenous Peoples as two examples. 1 While these declarations have no real force, they are nonetheless part of what is increasingly becoming a widespread adherence to the idea that minority groups within a state must be respected and accommodated Address correspondence to Jean-François Caron or Guy Laforest, Département de science politique, Université Laval, Pavillon Charles-de-Koninck, bureau 3449, Québec, Canada G1K 7P4. jean-francois.caron.8@ulaval.ca or guy.laforest@pol.ulaval.ca 27

3 28 J.-F. Caron and G. Laforest instead of assimilated. 2 For example, the European Union has made respect for minority rights a criterion for membership, and this has had clear effects on the identity policies of some countries in the former Soviet bloc. Kymlicka says that under this new global standard: In contemporary international discourse, [...] pluralistic, multilingual, and multilevel states with complex internal structures for recognizing and empowering regions and minorities are increasingly seen as representing the more truly modern (or even postmodern ) approach. States that rigidly cling to the older centralized and unitary model, and that continue to deny that minorities exist (as in France, Greece, Turkey, or Japan), are increasingly described as backward, unable or unwilling to recognize and deal with the complexity and inherent pluralism of the modern world. 3 In this sense, the recognition of minority groups is a conceptual breach from the traditional model of the nation-state, which has historically prohibited ethnocultural diversity in all its forms. The current developments thus represent a turning point in the history of human relationships within political associations, and consequently the recognition and accommodation of minority groups is now seen as a norm of justice. 4 To state the obvious, some states are more advanced than others when it comes to accommodation of minority groups. Of course, the accommodation of minority groups varies greatly based on the nature of the pluralism whether it is multicultural or multinational (or both). While the former is mostly linked to ethnic groups and immigrants, the latter is associated with substate/minority nationalisms, that is, a regionally concentrated group that conceives of itself as a nation within a larger state (like Scotland in Great Britain or Catalonia in Spain), and mobilizes behind nationalist political parties to achieve recognition of its nationhood, either in the form of an independent state or through territorial autonomy within the larger state. 5 It is obvious that Canada s pluralism is both multicultural and multinational in character; while multiculturalism is a result of its ambitious immigration policy and its high proportion of inhabitants who were born outside the country, multinationalism is due in large part to the presence of the province of Quebec. Considering the various dimensions of multiculturalism, the accommodation of ethnic groups and of substate nationalism implies different types of policies. In the case of immigrants, the most common forms of policies are the clear affirmation (whether by ways of constitutional or legislative recognition) of multiculturalism, by granting exemptions to ethnic groups such as dress codes or judicial derogation or by funding organizations that support multiculturalism. On the other hand, Kymlicka believes that multinationalism can be accommodated through a federal or quasi-federal territorial autonomy, with the constitutional or legislative affirmation of the multinational character of the state or by granting international personality to a nation. 6 If we agree with

4 Canada and Multinational Federalism 29 multiculturalism as a fundamental norm of justice, those forms of policies are unavoidable. It is the latter case that we would like to consider in the present article, more specifically by examining the recognition of the Quebec national minority within Canadian federalism and by concentrating on the normative policies that could accommodate this type of multiculturalism. Many authors have argued that Canada does not meet the new international standard according to which the accommodation of minority groups should be promoted. 7 To the contrary, and notwithstanding the fact that it is widely recognized by comparativists that Quebecers enjoy an extensive cultural and political autonomy that make them the envy of other minority nationalists elsewhere (Catalans, Scots), Canadian federalism has tended since 1950 to follow the old logic of the nation-state, which opposes recognition of the Quebec nation. This leads to making Canadian federalism somewhat of an anachronism with regards to the Kymlickian standard. However, following the federal election of January 2006, some people have argued that Canadian federalism has slowly moved towards meeting this moral norm of recognition, most notably through Stephen Harper s pledge to establish an open federalism policy towards the Quebec nation. Prior to the 2006 election, there was nothing to suggest that Stephen Harper s Conservative Party would make a breakthrough in Quebec. The truth of the matter, as noted by André Pratte, an editorial writer with the Montreal daily La Presse, is that Stephen Harper was a stereotypical western Canadian redneck opposed to anything that separated Quebec progressivism from Canadian conservatism, such as the acceptance of same-sex marriage, women s right to an abortion, and particular sensitivity to sustainable development. 8 However, everything was turned upside down when, in a speech given before the Quebec City chamber of commerce on 19 Dec. 2005, Harper unveiled the outline of what was to become open federalism. Graham Fraser wrote that Harper s speech was as important as the speech given by Brian Mulroney in Sept-Îles in 1984 in which he promised to do everything in his power to bring Quebec back into the Canadian constitutional fold with honour and enthusiasm 9 and to accommodate its national specificity inside the Canadian federation. The Canadian political scene was transformed days later. The Conservative Party had garnered a meager 8.8% of the votes in Quebec in the 2004 election, but a poll conducted in the first week of January 2006 by the EKOS firm found that the Conservatives had the support of 20.9% of decided voters. On the evening of 23 Jan., the polls were proven right: Stephen Harper had formed a minority government and 10 of his candidates had managed to get elected in Quebec with the support of about onequarter of the province s voters. Stephen Harper and his Conservative Party have more or less maintained this same level of representation and popular support in Québec in the Canadian federal election of 14 Oct. 2008; although

5 30 J.-F. Caron and G. Laforest their hopes for a majority government were dashed by a weaker campaign in Québec. After more than a decade of political polarization between nationalist voters the vast majority of whom supported the Bloc Québécois and voters who favored a centralizing federalism the vast majority of whom supported the Liberal Party of Canada the election of a Conservative government came as good news to many who viewed the 19 Dec speech as an opportunity to take another look at the way Canadian federalism works and to see how it could accommodate Quebec s nationalist aspirations within a united Canada. Clearly, the speech had sparked enthusiasm among Quebec nationalists, who hoped to be able to get Canada to formally accept its multinational character, something the Liberal Party always refused to do since the end of the 1960s. That trend was confirmed during Harper s first months in office. In November 2006, the Prime Minister tabled a motion in the House of Commons recognizing Quebec as a nation within a united Canada. A few months earlier, the Conservative government had agreed that the province of Quebec could obtain the right to a seat at the United Nations Educational, Scientific and Cultural Organization (UNESCO), a right given only to Québec in a clear manifestation of the asymmetrical nature of open federalism. It can be argued that both initiatives reveal the multinational turnabout that some observers saw in Harper s open federalism. After all, and like Kymlicka has argued, the symbolic recognition of a minority nation and the international recognition of national minorities are considered by many authors to be very clear signs of support for multinationalism. But is that actually the case? Is the open federalism advocated by the Harper government really and truly changing Canada into a multinational state that is distinct from the traditional nation-state model, therefore, contributing to making it more up to date with the new moral norm of recognition? Whereas this new approach has engendered a lot of enthusiasm in Quebec, a closer look at the elements of this new approach of federalism shows that it largely relies on monistic premises traditionally attached to the anachronic model of the nation-state. The aim of this article will be to propose a critical analysis of this new type of federalism. The first part of the paper is devoted to the constituent elements of the logic of the nation-state, while the second part offers a historical analysis of the Canadian case. The third part consists of a closer examination of Stephen Harper s open federalism and its relations with the evolution of Canadian federalism since the 1960s. MONISM AND THE NATION-STATE As Geneviève Nootens has observed, Western modernity [has been accompanied by] a unique way of defining the political community and organizing

6 Canada and Multinational Federalism 31 power: the national state. 10 From this perspective, the concept of state sovereignty has historically been understood as the capacity of a state to exercise full control over all activities directly or indirectly relating to its territory. The state thus became the assertion of sovereignty, that is, the imposition of an ultimate authority within the boundaries of a defined territory; the effect of which has been to present the members of the political association as united around an exclusive identity based on membership in a common space. Today, still, this monistic conception of citizenship continues to exert an extremely powerful attraction in terms of the need for the members of a political association to have a unitary and indivisible feeling of identity. Before the emergence of the modern nation-state, Europe was divided among various forms of political systems (empires, city-states, monarchies) and various overlapping social, political, economical, and religious power structures. What the nation-state was capable to accomplish was the concentration of all forms of authority and allegiance, with the imposition of common values as its umbrella. The objective was to replace the old forms of loyalty with a single state-controlled loyalty. In terms of the feeling of identity, by replacing the old forms of loyalty and acquiring a monopoly over that feeling, the nation-state was able to institute the idea that the feeling of identity should be unitary and indivisible. The French Revolution most definitely played a key role in this way of conceptualizing national belonging. The objective of constructing a single and indivisible national identity was to unite strangers and to mobilize them as members of a single political association; the boundaries of which, in many cases, were not in any way natural. To quote Benedict Anderson, the state s responsibility was to create an imagined community that could unite the people around a common identity. 11 This monistic conception of membership and identity also had significant effects on the bonds of fellow-feeling among individuals. Citizenship, which embodies the relationship between an individual and a particular political community, is much more than a legal principle; it also implies much more substantial elements from the psychological point of view, and the consequence of this is that individuals will assign priority to their fellow nationals, in terms of the moral obligations that each has to the rest of humanity. 12 Nootens points out that by this theory, individuals are not prepared to accept obligations to a broader social group unless there is a sense of common identity and a heightened level of trust, 13 the second element being a consequence of the first. The nation-state and the manner in which it has contextualized identity also had effects on the practice of democracy. Civic membership in a people went hand in hand with the assignment of certain rights and privileges that are strongly associated with the territory of the state. From that perspective, the practice of democracy and the ability to exercise civic rights have

7 32 J.-F. Caron and G. Laforest historically been confined to the level of the state. However, the concept of democracy could not have accompanied rights without the concept of strong national cohesion. That necessity is founded on the idea that in the context of democratic discourse, it may be that a position adopted by some individuals is not accepted by the rest of the community. Despite the fact that those individuals are in the minority, democracy implies that people in that situation will not resort to violence to oppose the decision with which they do not agree. In the absence of a strong intersubjective feeling by which the members of a community can be united, there could be no selfdetermination through democracy. If there were no imagined community, individuals would vote solely on the basis of their own interests and would refuse to submit to a collective decision to which they had not consented. It is necessary that the decision made by the political association be in the interest of the community as a whole. From that perspective, everything that has the effect of dividing the people is perceived as being abnormal, and a threat to the operation of redistributive justice and the practice of a healthy democracy, making the state impossible to manage. Hence, states that traditionally granted rights to minorities within their borders were viewed as conceptual anomalies. On this subject, Kymlicka states: Throughout much of the twentieth-century, the most influential example of a normal state was France i.e. a highly centralized state with an undifferentiated conception of republican citizenship and a single official language. In this model, there is no room for minority rights indeed, the French government and its Constitutional Court have repeatedly asserted that it is conceptually impossible that minorities could exist in the country, since everyone by definition had an identical and undifferentiated citizenship.... In relation to this ideal of the state, countries that were officially multilingual, and/or that recognized various forms of substate autonomy of legal pluralism for their minorities and indigenous peoples, were seen as anomalies and anachronisms. 14 Clearly, the situation has changed significantly since that time. Kymlicka notes that there is now a moral standard that advocates the recognition of minority groups. According to him, the international community came to understand that the recognition and accommodation of these groups was essential to the stability of pluralist states. 15 Furthermore, philosophical thinking over the past few decades has helped to bolster the argument that the assimilationist policies of the past are now considered unfair. Recent works have focussed in particular on appropriate ways to recognize cultural minorities, which begins by accommodating minority groups. In this regard, liberal thinkers will say that cultural membership is essential to the exercise of individual freedom. They argue that the primary

8 Canada and Multinational Federalism 33 concern of liberalism, namely giving individuals the greatest possible freedom in choosing their conception of the good life, could serve as justification for recognizing and protecting national minorities. Specifically, societal cultures are perceived as giving individuals the ability to choose, thus allowing them to better understand and to appreciate the various conceptions of the good life available to them. This view is shared by Ronald Dworkin, who believes that cultural membership provides us with a filter through which we can determine the value of our experiences. 16 Kymlicka, for his part, has indicated that liberals must pay attention to cultural structures, not because of their intrinsic value per se, but because they are essential to the exercise of individual freedom; that is, the ability to determine one s conception of the good life and revise it as needed. 17 On the practical side, this logic of recognition has multiple implications that seek to eliminate the centralization of all political and legal powers in institutions dominated by the ethnocultural majority group and the diffusion of the culture, norms, and values of this group in the public institutions. Therefore, the ethnic groups are no longer expected to assimilate in the dominant culture of a country and the affirmation of their differences is usually welcome by the state in which they live. Keith Banting and Will Kymlicka have identified the following eight policies in regard to the affirmation of multiculturalism and the rejection of the anachronic nation-state model that are 1) the constitutional, legislative, or parliamentary affirmation of multiculturalism, at the central and/or regional and municipal levels; 2) the adoption of multiculturalism in school curricula; 3) the inclusion of ethnic representation/sensitivity in the mandate of public media or media licensing; 4) the exemptions from dress-codes, Sunday-closing legislation etc. (either by statute or by court cases); 5) allowing dual citizenship; 6) the funding of ethnic group organizations to support cultural activities; 7) the funding of bilingual education or mother-tongue instruction; 8) affirmative action for disadvantaged immigrant groups. 18 On the other hand, the affirmation of multinationalism must take into account the fact that minority nations have always tried to affirm their identity as separate and autonomous political societies despite the attempts by the dominant ethnocultural group to alter this feeling of distinctiveness. By using the language of nationalism, they consider themselves as entities that should be able to self-determinate politically, socially, economically, and culturally based on their specificities. Like Jacques Brossard has argued, the concept of self-determination for every people/nation isn t simply a word, but a principle of imperative action that should make sure that, at all times and under every circumstances, national aspirations must be respected and that a people shouldn t be dominated by another nation and that they should be governed only by the will of its members. 19 This possibility can be attained through the creation of an independent nation-state or a province/länder/autonomous community in a federal state. In the case of the second option, a federal state would have to

9 34 J.-F. Caron and G. Laforest make sure that any national minority could self-determinate freely without suffering any interferences from the dominant ethnocultural group. It is in this regard that Kymlicka considers that a minority nation is by no means different from the majority nation. Both are societal cultures with an inalienable and equal right to maintain their cultural specificities and to self-government. Being equal, the relations between them have to be organized as if it was between two sovereign countries. 20 Now of course, this equal right to self-determination entails serious implications for the political unity of a multination federation: a problem that reflects the way political philosophy has thought about the question of pluralism in the past 20 years. According to Jocelyn Maclure, contemporary Anglo-American political philosophy is understood, in its dominant tradition, as an enterprise that is first and foremost normative, as the bulk of the work on multiculturalism has thus far been devoted to the rights of cultural minorities. 21 Accordingly, as Daniel Weinstock points out, the philosophers of recognition are insufficiently concerned with how the institutions of a diversified society that asserts rather than denies its pluralism should be organized so as to maintain the unity of the polity. 22 Kymlicka explains the persistence of this dilemma in the philosophical literature by the fact that authors today still have little interest in investigating the conditions that foster the unity of multination societies, preferring to dwell on the fact that attempts to assimilate national minorities are contrary to the moral norms that call for their recognition. In regards to the accommodation of national minorities, it is difficult to believe that recognition of these minorities can have an integrative function. But the fact remains that, under the norms of justice that favor such recognition, it is difficult, if not impossible, to avoid this type of situation. That is why many authors have felt that this could lead to a dilemma. Many of them have said that recognizing the rights of national minorities could damage the ties between the members of the political community, as well as the community s authority and permanence. 23 ThecaseoftheBelgian federation is often seen as the empirical case that political leaders need to avoid. However, just like it was argued by Dimitrios Karmis and Jocelyn Maclure, there must be a balance between the recognition and the accommodation of diversity and of unity that, in the case of multination federalism, should be the maintenance of a federal spirit. For many authors, the dual sense of belonging felt by members of national minorities is a condition of unity. 24 In other words, the accommodation of pluralism has to be combined with elements that will sustain a sense of belonging to the federal state from individuals who belong to national minorities. The self-determination that national minorities should have under the norm of recognition should not quash the federal dimensions of the multinational polity and lead to two fully independent monist nation-states. Even in a context of recognition and accommodation of national minorities, political unity is still possible, only if individuals who belong to national communities continue to feel a sense

10 Canada and Multinational Federalism 35 of attachment to the state in which they are incorporated. This balance is essential for the political unity of the federal state. However, the question that scholarship has to face on this matter is the following: what should be the essence of this sense of belonging? In other words, how could a federal spirit work in complementarity with the sense of belonging that Quebecers, Scottish, or Catalans have toward their national community? This will be the direction of our own work, beyond the current article. Nevertheless, as regards to the recognition of Quebec s national minority, it is our opinion that the development of Canadian nationalism since the Second World War has largely been based on the traditional model of the nation-state and is, therefore, contrary to the new norm of recognition evoked by Kymlicka. Since the 1930s, but more specifically during the post period, the federal government has deliberately attempted to create a standard Canadian national identity. In this regard, we might mention the creation of the Canadian Broadcasting Corporation, whose objective was to broadcast programming, first radio and then television, with Canadian content, or the creation of the Canada Council for the Arts. As well, because of the Keynesian climate of the postwar period, the federal government became the engine of social citizenship in Canada, more specifically with the creation of social programs that have, over time, been conflated with being Canadian. The creation of this feeling of Canadian-ness has also provided a way for English Canada to distinguish itself, in terms of identity, from the United States. All of these factors have contributed to silencing regional identities in favor of a single Canadian identity that is heavily dependent on the actions of the federal government. 25 At the same time, however, Quebec was moving forward with its own national project and began to actively affirm its francophone national identity through a province-building process that used the tools available to establish the province as the national state of all Quebecers. It was during this period that its legislative assembly adopted the name of Assemblée nationale, Télé-Québec, the Régie des rentes du Québec, and the Caisse de dépôt et de placement were created, and Quebec established a modern and highly centralized education system and nationalized its hydroelectric energy. Given the role of the government of Quebec as an engine of this Quebec identity, the Quebec premiers during this period and we are thinking of Jean Lesage and Daniel Johnson took the position that Quebec was not a province like the others, because it was the home of a distinct nation. Consequently, they believed that the federal government should grant the province a special status within the Canadian federation. In Lesage s view, this would be accomplished by the granting of asymmetrical powers, while Johnson advocated a reconfiguration of the Canadian state that would enable it to reflect its binational character. In essence, from the 1960s onwards, Quebec nationalism envisioned Canada from a resolutely multinational perspective.

11 36 J.-F. Caron and G. Laforest Although Prime Minister Lester B. Pearson positively responded to the Quebec conception of Canada, most notably by establishing a Royal Commission on the future of bilingualism and cultural duality in Canada, many intellectuals remained confined within a monist logic of the Canadian state and refused to acknowledge that there could be, and had to be, an admission of a nation within a nation. To their minds, Canadian unity required that all individuals be incorporated into a single identity, the pan-canadian identity, and this required that a strong federal state be preserved as the single reference point for identity. The most famous adherent of this position is Pierre Elliot Trudeau. He devoted his political career to advocating a conception of Canada in which citizenship was single and indivisible through which all individuals would be treated equally, with the result that Jeremy Webber said that Trudeau was essentially using the language of a classical, unitary nation-state. 26 The inevitable consequence was to bring two conceptions of Canadian federalism into conflict. While Quebec advocated a type of federalism in which ethnocultural diversity would be accommodated through a special status, which is often asymmetrical in nature, Trudeauism, on the other hand, defended a territorial type of federalism that doesn t recognize nor accommodate multinational diversity but rather considered the provinces as political entities that dealt with strictly local matters. The latter version of federalism, which is now broadly adhered to in English Canada, goes against the moral norm in favor of accommodating national minorities. CANADIAN FEDERAL INSTITUTIONS AND ITS MONIST DECISION-MAKING PROCESS For English Canada, the patriation of the Canadian constitution and the entrenchment of a Charter of Rights and Freedoms in April 1982 represent a turning point what some might call a founding moment. In effect, it marked the enshrinement of the Trudeauist vision that has since then dictated how federalism operates. Patriation of the Constitution The patriation of the Constitution in is the factor that has defined Canadian politics for the past 25 years and that tends to validate the position according to which Canada refuses to acknowledge its multinational nature. We would note that before that date, Canada did not have a proper constitutional amending formula, and any request for amendment had to be assented to by the Parliament at Westminster. By patriating its Constitution, Canada became a genuinely sovereign political entity,

12 Canada and Multinational Federalism 37 in that it formally cut its last ties with Great Britain. Some aspects of the process, however, ran counter to the recognition of Canada s multinational nature. First, the method by which patriation was achieved is probably the aspect most commonly cited by its detractors. The events that led to patriation are regarded as a major national trauma by a majority of Quebecers. An agreement was negotiated during the night of 4 5 November 1981, between the federal government and the nine anglophone provinces, without the knowledge of the Quebec delegation, which was presented with the fait accompli at the meeting the next morning. The anglophone provinces thus agreed with Ottawa s representatives on a constitutional amending formula and the adoption of a Charter of Rights and Freedoms that would significantly reduce Quebec s powers in relation to language. From that perspective, patriation was regarded by Quebecers as an event in which a government in which anglophones made up a majority, the government in Ottawa, supported by nine anglophone provinces, went to London to ask the British authorities, among other things, to reduce the powers of the only francophone government in North America. 27 This process ran counter to Quebec s interpretation of the Constitution Act, For Quebecers, the Canadian Confederation represented a union between two founding nations, and any alteration to how it functioned had to be consented to by Quebec, which was implicitly confirmed prior to the patriation. Earlier efforts to patriate the Constitution the Fulton-Favreau formula (1965) and the Victoria Charter (1971) had all been abandoned because of the opposition of the Quebec government. In Quebec s eyes, those events spoke clearly enough that it should have been given a veto over any constitutional amendment; a veto that was justified by the central role played by Quebec as a founding people. 28 This constitutional convention, for Quebec, represented an unequivocal confirmation of the binational nature of the Canadian state and is deeply rooted in Quebec s political culture. When the Constitution was patriated without Quebec s consent, it was widely believed by Quebecers that the federal government and the nine anglophone provinces unequivocally expressed their rejection of the idea of Canada as a multinational state. 29 However, for some Quebecers, this merely confirmed what Trudeau had introduced in the 1971 multiculturalism policy, which was the first opportunity the Trudeau government had had to expressly reject the conception of biculturalism to which Quebec adhered. That policy stripped Quebec culture of its important classification as a founding people in the Canadian federation, and it became, rather, a mere culture like the others. With that policy, it became clear that the Trudeau government had conflated two things, by linking the sociological reality with the principles of recognition associated with identity politics and by treating a national minority as if it had the same status as an ethnic group. By denying Quebec a veto over amendments to

13 38 J.-F. Caron and G. Laforest the Constitution, as a bicultural logic would require, English Canada simply gave formal recognition to the ideal concealed behind the multiculturalism policy: that Canadian diversity was to be expressed in terms of ethnic pluralism. Apart from the way in which patriation was achieved, the refusal to recognize the multinational nature of the Canadian federation was also expressed in the amending formula adopted in 1982, which is so complex and rigid that it precludes any accommodation of the nature of Quebec as a nation. From that point on, any real recognition of the distinct status of Quebec within the Canadian federation would require the unanimous approval of both the federal Parliament and all the provinces. Both on paper and in practice, the chance of this happening seemed extremely slim, as demonstrated, for example, by the Meech Lake Accord, which failed to obtain the approval of the Newfoundland and Manitoba legislative assemblies. From that perspective, an explicit affirmation of the multinational nature of the Canadian federation appears impossible. Quebec, the entity that is most affected by that effort, is trapped in to take James Tully s expression in a constitutional straightjacket, 30 forcibly imposed on it in 1982 by the federal government and the nine anglophone provinces. The Canadian Charter of Rights and Freedoms Still, the most lasting factor associated with the 1982 patriation, in terms of denying the multinational nature of the Canadian state, is undeniably the Canadian Charter of Rights and Freedoms, which was a major addition to the 1982 Constitution. Trudeau s objective was to generate a Canadian nationalism, by ensuring that Canadian society was organized around the same principles, and not 10 codes of values all differing from one another. This is precisely what the Charter has been able to accomplish. By making individuals throughout the country subject to the same rights and privileges, the Charter has adopted a monistic and undifferentiated vision of Canadian citizenship. 31 This is what André Burelle was referring to when he wrote: [G]overnment by judges, through a national Charter that prevails over any provincial charter, means that the collective rights of the various components of the federation can be disregarded, and the country homogenized in the name of equality and the intangibility of individual rights or, on the other hand, government by the Canadian people enables the federal government to circumvent the constitution and exercise a right to interfere in areas under provincial jurisdiction, in order that the higher interest of the nation will prevail and the citizens of a single country will have equal opportunities. 32 But, more precisely, the Charter was seen and is still seen as an instrument that opposes Quebec s right to self-determinate which is, in a context

14 Canada and Multinational Federalism 39 of multinationalism, a fundamental and nonnegotiable notion. The Charter took its place in opposition to certain common public norms adhered to by Quebec society, which were designed to both protect and promote its francophone character. In this regard, the effects of the Charter on the Quebec Charter of the French language, more commonly known as Bill 101, are the best documented and clearest. More specifically, section 73 of Bill 101, which provided that only children with one parent who had received an education in English in Quebec had the right to attend English educational institutions themselves, was held to be void under section 23 of the Canadian Charter, which extended that right to children with one parent who had received an education in English in Canada. Very clearly, that effect of the Charter on Quebec legislation has a crucial meaning in the understanding of the federal architecture in Canada, which clearly shows the trend toward uniformity in the treatment of individuals throughout the country and consequently undermines its multinational character. Quebec is thus subject to a normative framework of rights and freedoms that is expressly contrary to decisions made on behalf of the cultural self-determination of the Quebec nation and its interests. In this sense, the Charter, which is to be interpreted by nine judges appointed unilaterally by the Canadian Prime Minister, runs counter to the collective self-determination of the Quebec people and comes in tension with the expression of the multinational character of Canada, in favor of a monistic conception of the Canadian political structure. With the Charter and the Spirit of 1982, Trudeau laid the fundamental and necessary foundations for the creation of a pan Canadian national feeling that has been imposed in a manner that is incompatible with the national project of Quebec. This is why Peter Russell argues that the Charter has three main nation-building elements; the first one being the symbolic aspect of the document that sees Canada as one people organized around a single set of values and rights. Second, the national standards that we find in the Charter have homogeneous policies that can go against the will of Quebec s National Assembly. Finally, the judicialization of the Canadian political system meant that issues ceased to be regionally defined and addressed by provincial representatives and instead took on a non-territorial and national character and the Canadian judicial system is hierarchical, and the Supreme Court s jurisprudence is binding on all other courts. 33 All of these consequences have led Laforest to argue that Quebecers are now estranged from the Charter and the Canadian political experience, feeling like aliens in their own country, in a form of internal exile. 34 The Repercussions of the Spirit of 1982 in the Last 25 Years At bottom, what we can therefore say is that the Spirit of 1982 was a conscious and lucid attack on the idea that Quebec is a nation, and consequently that

15 40 J.-F. Caron and G. Laforest Canada is a multinational state. 35 Obviously, it would be inaccurate to say that the events of 1982 were celebrated by all Canadians outside Quebec. In fact, many voices spoke out to say that patriation could be the first step on the path to separation by Quebec. For example, in response to five modest demands by the Quebec government, the objective of which was to have some degree of multinationalism recognized in Canada, Ottawa and the provinces agreed, in 1987, on a constitutional accord that would allow Quebec to rejoin the Canadian constitutional family with honor and enthusiasm and that was to be approved by all provincial legislatures before June However, because of the long tradition associated with monism, heated opposition soon arose in English Canada. As Kenneth McRoberts wrote: In March of 1990, as time was running out for the Accord, Gallup found only 19 per cent of Anglophones in favour, with 51 per cent against and 30 per cent undecided. Immediately after the collapse of Meech, only 30 per cent of Anglophones felt that the Accord should have been ratified; among Anglophones the most popular politician was Newfoundland Premier Clyde Wells, the Accord s fiercest adversary. 36 That opposition was largely inspired by the Trudeauistic conception of federalism and considered that although with great exaggeration the result would have been to create a Canada governed by two constitutions, two charters, and two value systems, which would have been the end of Canadian unity. The relaunching of multinationalism guaranteed by Meech, but which was not consistent with the political heritage of English Canada, was rejected in 1990, as was the subsequent and more modest Charlottetown Accord in These two defeats marked the victory of Trudeauism over a multinational conception of the country in English Canada. In the 1993 federal election, the political parties advocated a monistic, unitary conception of the country: Jean Chrétien s Liberal Party and Preston Manning s Reform Party won 177 and 52 seats, respectively, while the Progressive Conservative Party, which had supported the Meech Lake and Charlottetown Accords, was reduced to two seats from the 169 it had won in the previous election. On the other hand, of the 75 Quebec ridings in the House of Commons, the Lucien Bouchard-led Bloc Québécois, which advocated for Quebec sovereignty, elected 54 members. These results could not offer a better representation of the constitutional fracture, and the division between Quebec and English Canada on the question of the nature of the Canadian state. It can be argued that this political fragmentation, based upon two distinct conceptions of federalism, lasted until January 2006 with the election of the Harper Government that appears to represent a third way of thinking about federalism in Canada.

16 Canada and Multinational Federalism 41 STEPHEN HARPER S OPEN FEDERALISM : A BREACH FROM MONISM? Obviously, there are different levels of multinationalism and some countries are more multinational than others. One way to establish such a judgment would be to analyze countries in function of the number of multicultural policies they have implemented. However, we believe that this method would not give justice to the concept of multinationalism, since the different policies that are associated with it don t have the same qualitative value. As an example, for a large number of nationalists, the devolution of different jurisdictions from a central government to a minority nation is a more significant policy than the legislative recognition of the multinational character of a state, since the former has direct and concrete consequences for the self-determination of the minority nation, while the latter only has a cosmetic value and doesn t necessarily have practical implications. As a result, it is in our opinion more fruitful for political analysis to divide the concept of multinationalism into two categories: symbolic multinationalism and consequentialist multinationalism, with the second option being the most important one to define a state as a multinational one that would be in accordance with the Kymlickian standard of recognition as a breach from monism associated with the nation-state. Regarding the first category, its appellation is quite representative of its nature that limits the recognition of multinationalism to purely symbolic elements, such as the constitutional or parliamentary affirmation of the multinational character of a state. As for consequentialist multinationalism, it aims to give concrete and practical implications to the recognition of minority nations within a larger state, more specifically by making sure that the state becomes a partnership between at least two nations that should have equal rights to nation-building and to political self-determination without suffering interferences from the other national group. 37 In the eyes of Wayne Norman, this ideal of partnership is a quintessential form of recognition and a sine qua non condition defining multinationalism. 38 Forhim,aswell as for Ferran Requejo, the establishment of policies that really permit the self-determination of its minority nation defines a truly multinational state. 39 In this context, Requejo writes that Territories endowed with a national character should be able to dictate cultural and linguistic policies without the interference of other territorial powers since These policies are fundamental to achieve a real politics of recognition of the national entities in different arenas. 40 Therefore, the ethnocultural dominant group will have to renounce significant nation-building objectives and assimilationist politics and to accept that minority national groups should be able to engage in their own political project based on their cultural specificities and even exercise their cultural sovereignty on the international scene just like any other independent people. 41

17 42 J.-F. Caron and G. Laforest This second category of multinationalism usually implies policies such as the devolution of powers or the establishment of a federal structure and it enables federal entities composed of minority nations to benefit from a differential treatment, usually through asymmetrical policies, because of their national nature and their equal right with the dominant ethnocultural group to pursue their self-determination. In this regard, Norman argues that the recognition of a national minority and its inherent right to self-government endows the federated state, where this minority people is massively concentrated, with the right and the duty to promote its cultural specificity and its self-determination. Such recognition, Norman writes, will almost certainly have to be given asymmetrically if it is to be meaningful. 42 In this regard, such a treatment should be given to Quebec, Catalonia, the Basque Country and not to Saskatchewan, Ontario, Andalusia, or Castilla y Leon, which are federal entities or autonomous communities composed by the dominant ethnocultural group (English Canadians or Castillans). It is the only way to really translate the politics of multinational states into an equal partnership between different peoples and to break from monism. This asymmetrical treatment for national minorities can be justified in two different ways. First of all, the fact remains that despite its initial claims, the liberal position on equality can also justify asymmetrical treatment of national minorities. As Kymlicka pointed out, 20th-century liberalism considered the fact that the formal equality it was striving for would not necessarily be reflected in reality and that some groups ethnic and religious groups, women or persons with disabilities did not enjoy the same opportunities as individuals part of politically dominant groups, that is, able-bodied white men from the middle class. 43 Faced with those disadvantages, some left-leaning liberals tended to favor affirmative action programs so that disadvantaged social groups could attain the same social conditions as other groups. In that regard, the principle of equal, undifferentiated treatment (equality) takes a back seat to the goal of equal opportunity (equity). To attain real equality, not just official equality, liberals agreed that some people held citizen plus status. 44 For example, these measures can take the form of allocating a certain number of seats in legislatures for those groups so that they have a greater political voice. Similar thinking applies to minority groups like national minorities. As in the case of the other groups mentioned above, equal, undifferentiated treatment of all the entities that make up the federation does not take into account the impact policies can have on minority nations. Donald Lenihan, Gordon Robertson, and Roger Tassé wrote: The claim that provincial equality implies same treatment is open to the same kind of objection raised against a formal approach to the equality of persons. Those who argue this way seem to confuse the (sound) claim that the federal government should treat the interests of all provinces with

18 Canada and Multinational Federalism 43 equal concern and respect with (unsound) claim that all provinces should be treated the same. This ignores the fact that provinces (like individuals) sometimes have special needs or may be burdened by circumstances. 45 Faced with the prospect of one group always being a minority, the principle of equality that is so dear to liberalism must go hand in hand with a principle of equity. More specifically, this can be done by granting special political rights which means asymmetrical rights to groups that are penalized or disadvantaged by their societal conditions, such as national minorities. Secondly, advocates of an asymmetrical treatment for national minorities believe that political entities that house such communities must be able to rely on differentiated treatment so that they can protect their cultural and/or linguistic uniqueness. In that context, Alain-G. Gagnon wrote in reference to the Quebec situation that the justification of asymmetry is that it allows for the better protection of a community defined by language and culture. Asymmetrical federalism is associated here with the importance of groups as providers of culture. In other words, Quebec being the primary provider of culture for Quebecers, it deserves more power than a political unit which is simply a subdivision of a larger cultural unit. 46 In that connection, there is no clearer claim of that idea than in the report of the Tremblay Commission, which was created in 1953 by then Premier of Quebec Maurice Duplessis to inquire into the constitutional problems associated with Canadian federalism. In no uncertain terms, the report maintained a communitarian approach in its analysis of relations between Quebec and the rest of Canada and argued that the federal system had to take into account the binational reality of Canada, which comprises two distinct cultures. 47 The Commission viewed culture as an organic body of knowledge, means of expression and values that implicitly influence individual identity and each person s understanding of the world from the perspective of his or her own history and evolution. 48 The Commission wrote: Even before Man has become aware of himself, of his presence in the world, of his destinies and of his responsibilities, there intervenes the influence of the environment, both of family and of society, which presides over the first awakening of his personality, the putting into motion of his development; which supplies him with his first instruments of culture, the foundation on which he will later build his personal formation and the spirit in which he will pursue it. This culture, special to a given environment, is by definition the nation s informing principle. It is the national culture: the totality of the rational and spiritual values forming the collective patrimony of a determined human group; modes of life, morals, customs, traditions, language, laws, etc. 49 While the arguments put forward in the Tremblay report are rooted in thick communitarianism, it is possible to justify asymmetrical policies using an