Press Room

"ARE WE MOVING BEYOND OUR CONSTITUTIONAL OBSESSION?"

NOTES FOR AN ADDRESS TO
THE STUDENTS AT THE UNIVERSITY OF TORONTO

TORONTO, ONTARIO

JANUARY 28, 1999

I am a product of Canadian political science. Having fallen into it at a very early age, like Obelix and the magic potion, I owe it a great deal and I am very proud to be a Canadian political scientist. Incidentally, it has given me the opportunity to work with a number of colleagues at the University of Toronto, foremost among them the fine professor who introduced me, Peter Russell.

Peter, who has done invaluable work on the Canadian Constitution, needn’t feel uneasy about the title of my speech today: Are we moving beyond our constitutional obsession? I don’t want to put him out of a job!

By constitutional obsession, I don’t mean the dedication that constitutional experts bring to their work. Rather, I mean the false belief that the existence of a strong separatist movement in Canada is proof that the country’s Constitution does not work and that it must be completely overhauled if the country is to survive.

It seems to me that this belief has lost some ground in recent years. People are moving away from it, both in the public debate and in academic work on Canadian society.

I’d like to examine this constitutional obsession in greater detail before explaining why I feel it is important that we move beyond it.

Moving beyond constitutional obsession does not mean respecting the Constitution any less. Respecting the Constitution is essential to the proper functioning of our democracy and our whole political system. The Government of Canada scrupulously respects the Canadian Constitution, and has every intention of continuing to do so, despite the comments made yesterday by the Premier of my province.

Let’s look at the question of the federal spending power in areas of provincial jurisdiction. This power is recognized by the courts, in accordance with the principle that the division of constitutional jurisdictions pertains to the legislative power, not the spending power. This was confirmed in a judgment by the Supreme Court in 1989, which stated that "the federal spending power can be exercised so long as it is not in substance legislation on a provincial matter."

The spending power is not something new: the Rowell-Sirois Commission calculated that two thirds of provincial revenues came from federal transfers at the time of Confederation. Today, the federal spending power is much less substantial, reflecting the decentralized federation that Canada has become. Indeed, it is less used and less conditional than in other large modern federations.

Some Canadian constitutional experts believe that the federal spending power has been recognized by the courts as a means for the Government of Canada to fulfil its constitutional responsibility to maintain peace, order and good government. On that basis, those experts deny the federal government the right to deprive citizens of the full use of the federal spending power, free of any provincialn constraint. The Government of Canada believes that these experts are making an inaccurate interpretation of the Constitution and the case law, and that the federal government is fully entitled to make a certain form of its spending power conditional upon the support of a majority of the provinces, as it had done since 1996. But you can see that accusations of not respecting the Constitution come from both sides, from provincial proponents and centralizers alike.

So the end of the constitutional obsession is not synonymous with not respecting the Constitution. Nor does it mean giving up on constitutional reform. The Constitution can certainly be improved. It could include better recognition of Quebec, which would be a desirable addition, because it is true that Quebec society has its own specificity. And a number of other constitutional changes have been proposed that are completely valid, although most of the time, the issues they address would be more effectively resolved outside the rather inflexible constitutional reform process.

But when suggestions for constitutional reform are made with the single goal of allaying the separatist threat, regardless of the implications for the quality of service to Canadians, the result is a harmful constitutional obsession. And this is precisely what constitutional obsession is: reducing both the national unity debate and the debate on improving the Constitution to the "offer" that must supposedly be made to Quebec to keep it in Canada.

But we are moving beyond this obsession. There is increasing agreement that our Constitution does "work", even though it could work better. The solution to our political, economic and social problems and the promotion of the values we believe in does not require constitutional upheaval. We can see that separatist blackmail has never yielded anything positive for Quebecers or other Canadians, and that it is by deciding resolutely to stay together in full confidence that we will be better able to respond to the aspirations of all, including Quebecers.

I would like to examine three beneficial results of this moving away from constitutional obsession as it is so defined. I feel that, first, we have a better understanding of the secessionist phenomenon in Canada, second, we are becoming more successful at distinguishing this phenomenon from other Canadian realities, and third, we are looking at the division of jurisdiction and powers between the two orders of government in a much more tangible and productive way.

Quebecers have certainly been polled on the question of national belonging more than any other population in the world. The point that is raised most often from this accumulation of data is that Quebec public opinion is divided among the following four choices: 1) the constitutional status quo, 2) renewed federalism, 3) sovereignty-association, now known as sovereignty with an offer of partnership, and 4) independence.

Since it has long been found that the vast majority of Quebecers–almost two thirds–choose the two options presented as median (renewed federalism and sovereignty-partnership), attempts have been made to come up with a constitutional model to accommodate this soft underbelly of Quebec opinion. Politicians, political scientists, legal experts and others have devoted an uncommon amount of energy to this intellectual undertaking, which in some cases, as I mentioned earlier, has become an obsession.

The problem with this reasoning is that it completely ignores the real issue, which is secession. It depicts the vague notion of "sovereignty-partnership" as a moderate solution, alongside the other fuzzy concept of "renewed federalism". But we can see more clearly now that it’s simply not true that the concepts of renewed federalism and sovereignty-partnership belong side by side. They are separated by the chasm of secession. The fact is that the constitutional status quo and renewed federalism, on the one hand, and sovereignty-partnership and independence, on the other, are two pairs of concepts separated by the rupture of secession.

Quebecers do not face a spectrum of clearly defined solutions. The spectrum is split in half by the fundamental choice of whether or not to secede. As Prime Minister Jean Chrétien often says, secession is like being pregnant: either you are or you aren’t. You either secede or you don’t. You either stay in Canada or you leave Canada and make Quebec an independent country.

If you stay in Canada, you participate in the evolution of this country, one of the most prosperous, moderate and tolerant countries in the world, one of the most decentralized federations, one that is continually changing, in spite of constitutional constraints. If you make Quebec an independent country, you can try to forge alliances and make arrangements with neighbouring countries, without knowing in advance the results of this risky undertaking. But the fundamental choice is which country you want to live in.

I am sure you are aware of the numerous polls indicating that between 20% and 35% of YES voters in the 1995 referendum believed that a sovereign Quebec would still be a part of Canada. This confusion will be cleared up if the public debate continues in the direction it is now taking, namely a clarification of the meaning of secession.

You will recall the main argument that Mr. Bouchard used in the referendum, the "no more arguments" argument (la fin des chicanes). Following a YES vote, he promised, there would be no more sovereignists and no more federalists, only Quebecers, more united in solidarity than ever before. It is much more difficult today to buy into that "no more arguments" theory. We see more clearly that the best way to divide Quebecers is to plunge them into an attempted secession on the basis of an unclear question and an uncertain majority, without a legal framework.

Some may object that I’m saying this because I’m a federalist politician. And yet I sincerely feel that, if I were a separatist, I would be just as satisfied to see the meaning of secession clarified. I would say that the unclear procedure of Mr. Parizeau entailed a tremendous risk of going off the rails, and that to change Quebec from a Canadian province into an independent state, you must have a clear question and a clear majority for secession, followed by negotiations that respect the law. We would not have needed the Supreme Court to understand that if, no matter where our loyalties lie, we had done our homework on the secessionist phenomenon.

It’s never too late to put things right, however. We are now seeing Canadian researchers, including political scientists, doing some excellent work on the difficulties of reconciling secession and democracy including the treatment of minorities. Following in the footsteps of pioneers such as Jean-Pierre Derriennic and Robert Young, I noticed the recent release of the collection under the direction of Margaret Moore (National Self-Determination and Secession). It looks at the secessionist phenomenon from a number of theoretical angles, reflecting the public debate surrounding the recent opinion by the Supreme Court on unilateral secession.

The constitutional obsession leads people to include all sorts of considerations in the issue of secession that simply don’t belong there. We have only one problem of this kind in Canada, and one is more than enough: Quebec separatism.

To be sure, we also have other serious problems to resolve, including poverty, the tax burden, all sorts of inequalities, etc. But we share these problems with other countries that, for their part, do not have a national unity problem that is comparable to ours, for the simple reason that they do not have separatism.

For example, saying that improving conditions for Aboriginal peoples is not an issue that threatens the very existence of our country does not make it an any less essential or high-priority issue. It is simply recognizing that Aboriginal peoples have no desire to separate.

But here again, the constitutional obsession confuses everything. The solution, it tells us, lies in making an offer of constitutional changes to Quebec, in the form of transfers of powers and symbolic recognition. But this offer must also be acceptable to other Canadians. It would help if it contained something for them as well. As a result, any claim of the slightest importance is transformed into a national unity issue. Canadian unity becomes a Pandora’s box.

And so solutions are improvised on the fly. Since we’re "offering" something to Quebec, what will we "offer" to Western Canada? How about a Senate? The essential process of Senate reform, rather than being seen strictly from a perspective of making Parliament more effective, becomes a symbolic bargaining chip: if Quebec has its distinct or unique society, the West has to have its triple-E Senate.

The province calling most often for a triple-E Senate is Alberta. Our colleague Ted Morton from the University of Calgary’s Department of Political Science has even been elected as a "senator in waiting" through his calls for a triple-E Senate. But after years of presenting the "Triple-E" as the model for Senate reform, Professor Morton has now publicly stated that the equality provision would work to Alberta’s disadvantage by giving a disproportionate weight in the Senate to the smaller, have-not provinces. Had the debate on Senate reform been motivated by the desire for improvement as opposed to the need to barter something with the west in exchange for something given to Quebec, we could have had a more reasoned debate on this issue sooner.

Above all, constitutional changes must not be bargaining chips. Every proposal must be considered on its own merits, according to how it would benefit Canadians.

The Constitution is the fundamental law of the land. It has to do with the essential elements of life in society: from individual rights to political legitimacy. But the constitutional obsession produces a much narrower approach. It tends to limit the constitutional debate to the sole issue of the powers of governments, which it sees in terms of the "offer" that must supposedly be made to Quebec to keep it in Canada.

But we are seeing more and more clearly that the value that should be at the centre of that reflection on jurisdiction is the quality of service to Canadians. And we are coming to realize that the division of public responsibilities must not be seen as a process of strict compartmentalization, of schoolyard turf wars. We realize that one of the advantages of a modern federation is to force governments to continually come up with new ways of cooperating, in interdependence.

The division of powers between our two orders of government must continually evolve, so as to keep giving Canadian taxpayers more for their money. For this to happen, the specificity of every province and the cultural and linguistic dimension must certainly be taken into account, but always, it seems to me, with the goal of providing the best possible public service to citizens, wherever they live in Canada.

From the perspective of the constitutional obsession, the quality of public policy is no longer a concern. It disappears as an issue, completely eclipsed by the desire to provide "gains" for Quebec federalists through increased decentralization of powers. There was a time when you could attend symposia and read lengthy tomes on the division of powers without the quality of service to the public ever once being mentioned.

I do not believe that this intellectual activity has had a positive impact in terms of improving public policy. Nor do I think that it has helped us to understand what is really fuelling the independence movement.

We see more clearly now that it would be a mistake to believe that inflating the Government of Quebec with new responsibilities will calm separatist passions. You don't make a country stronger by relying on such a logic of internal separatism. Especially not when the country in question is already, in many ways, a decentralized federation in comparison with others in the world. Transfers of power cannot allay separatism if they are made for that purpose alone. Every new transfer would lead Quebecers to withdraw ever further into their territory, to define themselves by an exclusive "us", to see other Canadians increasingly only from afar, and to reject the Canadian government and common Canadian institutions as a threat to their nation, a foreign body.

The separatist leaders themselves made this very clear during the last election campaign. They clearly warned that each concession in terms of transfers of powers would be welcomed as a further step toward independence.

I can assure you that the Government of Canada, for its part, sees its relations with the provincial governments strictly from the viewpoint of quality of services to Canadians. All of our recent initiatives have been geared to that sole purpose, including the labour market agreements, environmental harmonization, and the constitutional amendments affecting Quebec and Newfoundland school boards. Similarly, in the current social union negotiations with the provincial and territorial governments, we are trying to find the decision-making framework that is best suited to improving health and social policy. The end result will benefit Canadians and thus strengthen the desire to stay together on the part of Quebecers and other Canadians.

We must say no to internal separatism and yes to governments working together while respecting their own jurisdictions. After all, that is what the majority of Canadians are calling on us to do, including Quebecers, in poll after poll.

The constitutional obsession, the belief that Canada cannot survive unless it rewrites its Constitution, obscures the real issue, which is secession and the rupture it entails. It opens up a Pandora’s box of all sorts of symbolic exaggerations. It leads people to see the issue of the division of powers according to a logic of internal separatism, rather than in terms of the best interests of Canadians.

Fortunately, we are now moving beyond our constitutional obsession. To be sure, this is true in part because of negative reasons. The failures of Meech and Charlottetown were not constructive experiences, and the current Quebec government has no interest in entering into constitutional talks. But we are also moving away from the constitutional obsession because we are in the process of making a very positive change of perspective.

Rather than seeing the existence of a strong separatist movement in Quebec as proof that Canada can only work if we undertake drastic constitutional change, we are coming to agree more and more that Canada, with or without constitutional change, is working admirably in the world, and that we will make it work even better once we decide resolutely to stay together.

We will improve it through approaches that do not necessarily lead to constitutional reform. Without constitutional upheaval, governments have put their public finances in order in recent years and developed new ways of working together more effectively to serve Canadians. They are succeeding in reducing trade barriers between provinces, without changing a single word in the Constitution. The new Ministerial Council on Social Policy Reform allows governments to work together to promote children’s well-being more effectively, and to help young people and other Canadians develop their social skills. It has been created without a constitutional amendment. The progress that will be achieved by all these efforts, and many others besides, will be long-lasting.

And so this is what I wished to say today to an academic audience, three days and three years after I left academia for the world of politics, in the hope that professors and students alike will find a certain validity in this message from a politician who is anything but neutral on this issue.

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