Talking Past Each Other
Quebec and the Federal Dialogue in Canada, 1867-2017
Talking Past Each Other is the first monograph in a generation to recount this story in its entirety.
Table Of Contents
- About the author(s)/editor(s)
- About the book
- This eBook can be cited
- 1. One Constitution, Two Theories of Federalism
- Democracy and Federalism
- Majoritarian Federalism
- Difference Federalism
- Plus ça change, plus c’est la même chose
- 2. The Confederation Debates and the Origins of Canada’s Federal Discourse
- Sir John A. Macdonald and the Origins of Majoritarian Federalism
- Antoine-Aimé Dorion and the Origins of Sovereignty Association
- Joseph Cauchon and the Origins of Difference Federalism
- The Legacy of Canada’s Confederation Debate
- 3. The New Canadian State and Majoritarian Federalism
- The Powers of Disallowance and Reservation
- Reservation and Disallowance of Federal Legislation by the Imperial Government
- Reservation and Disallowance of Provincial Legislation
- The Supreme Court: Advancing the Doctrine of Majoritarian Federalism
- Mixed Signals: The JCPC Attempts to Make Sense of the BNA Act
- The JCPC Leans Towards Difference Federalism
- The JCPC Swings Towards Majoritarian Federalism
- The Liquor License Act of 1883 and the Consolidation of Majoritarian Federalism
- 4. Quebec and the Rejection of Majoritarian Federalism
- The Mercer Case: Quebec Intervenes to Defend Difference Federalism
- Quebec Legislative Debates on Federalism: April-May 1884
- Mercier Attempts to Reclaim Lost Powers
- Honoré Mercier and the Interprovincial Conference 1887
- 5. The JCPC and the Promotion of Difference Federalism
- The Centrality of Quebec in Early JCPC Jurisprudence
- Lord Watson and the Entrenchment of Difference Federalism
- From Prohibition to the New Deal: The JCPC and the Canadian Constitution, 1896–1937
- The Critics of JCPC
- The Abolition of Appeals to the JCPC
- 6. Majoritarian Federalism and the Origins of the Post-War Social Union
- Fiscal Federalism in Canada 1867 to 1937
- Royal Commission on Dominion-Provincial Relations
- Quebec’s Reaction to the Sirois Report
- War Time Fiscal Arrangements
- The Dominion-Provincial Conference on Reconstruction 1945–46
- Post-War Social Policy and Fiscal Federalism: The St. Laurent and Duplessis Showdown
- The Tremblay Report and the Defence of Difference Federalism
- 7. The Quiet Revolution and the Defence of Difference Federalism
- Jean Lesage and the Quiet Revolution
- Égalité ou indépendance
- Federalism for the Future: Pearson’s Defence of Majoritarian Federalism
- The Federal Spending Power and the Canadian Constitution
- 8. Majoritarian Federalism and the Rise of the Parti Québécois
- Majoritarian Federalism and the Rise of the Parti Québécois
- Constitutional Negotiations 1968–1971 and the Victoria Charter
- The Parti Québécois in Power: Proposal for a New Partnership Between Equals
- The Quebec Liberal Party and the Defence of Difference Federalism
- Ottawa Takes Notice
- The Task Force on Canadian Unity
- The Rejection of Difference Federalism: Trudeau and the Patriation of the Constitution
- 9. The Rejection of Difference Federalism in the Rest of Canada
- Difference Federalism, and the Meech Lake Accord
- The Resurrection of Majoritarian Federalism in the Rest of Canada
- The Rejection of Federalism in Quebec
- The Charlottetown Accord: Reconciling Difference Federalism With Pan-Canadianism
- A Glimpse Into the Abyss: The 1995 Referendum
- 10. The Liberal Party of Canada and the Entrenchment of Majoritarian Federalism
- The Secession Reference Case and the Clarity Act: Reasserting the Majoritarian Principle
- Social Union Framework Agreement: Majoritarian Federalism Strikes Again
- Quebec’s Commission on Fiscal Imbalance: Challenging the Spending Power (Again)
- The Quebec Liberal Party and the Resurrection of Difference Federalism
- 11. The Conservative Party of Canada and the Emptiness of Open Federalism
- Open Federalism and the Political Economy of Securities Regulation
- Open Federalism and the Saga of Senate Reform
- Open Federalism, the Supreme Court, and Quebec’s Distinct Legal Traditions
- Open Federalism and the Politics of Guns
- The Emptiness of Open Federalism
- 12. All Talked Out?
- Federalism and Canadian Political Culture
The ideas contained in this book have bounced around in my head for twenty years. Over this time, I have incurred innumerable debts and tested the patience of many people. I would like to thank everyone who has helped me along the way, including all those not mentioned here. I am very grateful to the University of the Fraser Valley for providing financial assistance and moral support for this project. In particular, I would like to thank Yvon Dandurand and Adrienne Chan—the former and current—Associate Vice Presidents of Research, Brad Whitaker the Director of Research Services and Industry Liaison, and Jacqueline Nolte, the Dean of Arts. Discussions over the years with Harvey Lazar, Peter Meekison, Ron Dart, Barbara Messamore, André Lecours, Marc-Antoine Adam, Tim Schouls and Gerry Baier have been most helpful. I would especially like to thank Gerald Boychuk for reviewing the manuscript and offering constructive criticism. I thank Dawn Emile for her meticulous copy-editing, and I also thank Jennifer Bancroft for producing the index. I owe a huge debt of gratitude to my friend and colleague Emeritus Professor Scott Fast. He has been an outstanding mentor for the past sixteen years, and he sustained my morale at critical times ← ix | x → with his enthusiastic support of this project. As always, my parents Malcolm and Sally Telford have provided unconditional love and support. I would be remiss if I did not acknowledge the support of Victoria Crites. Our marriage did not survive the production of this book, but she did provide critical support when we were together. And together we produced a wonderful young man, who is the highlight of my life every day. I dedicate this book to him.
ONE CONSTITUTION, TWO THEORIES OF FEDERALISM
We have given the General Legislature … all the powers which are incident to sovereignty.
—Sir John A. Macdonald, The Honourable Member for Kingston (1865)
I find that the powers assigned to the General Parliament enable it to legislate on all subjects whatsoever … because all the sovereignty is vested in the general government. … We shall be—I speak as a Lower Canadian—we shall be at its mercy …
—Antoine-Aimé Dorion, The Honourable Member for Hochelaga (1865)
There will be no absolute sovereign power. … The Federal Parliament will have legislative sovereign power in all questions submitted to its control in the Constitution. So also the local legislatures will be sovereign in all matters which are specifically assigned to them.
—Joseph Cauchon, The Honourable Member for Montmorency (1865)
What does Quebec want? Canadians outside Quebec, exasperated by the seemingly endless demands from la belle province, have wrestled with this question for decades, perhaps going all the way back to Confederation. I shall argue that Quebecers—or more accurately their representatives in the National Assembly—have consistently promoted a particular understanding of federalism. In the debates on Confederation, a majority of representatives from Canada East in the legislature in the United Province of Canada believed that their conception of federalism was entrenched in the British North America ← 1 | 2 → Act. This belief has been echoed by political parties in Quebec ever since Confederation. Quebec’s conception of federalism, however, has little resonance for most Canadians outside Quebec, and the government of Canada in particular has embraced a very different conception of federalism. In this book, I attempt to reconstruct the historical conversation between the governments of Canada and Quebec on the meaning of the federal principle. I hope to demonstrate that the debate between the two governments is not primarily about the operation of federal institutions but the very definition of federalism upon which those institutions are premised.
The work on Canadian federalism is vast and varied, but there is surprisingly little literature detailing the long running tension between the governments of Canada and Quebec on the meaning of the federal principle, at least in English. Not surprisingly, francophone scholars have given this topic more thought, and the work in French is impressive.1 Canadian scholars outside Quebec have certainly taken an interest in Quebec’s political history,2 and there is now a substantial body of literature that has problematised the Quebec-Canada relationship in philosophical terms,3 but the specific story of Quebec’s relationship to Canadian federalism is generally subsumed in the larger pan-Canadian story,4 or in more focussed works on specific episodes in Canadian constitutional history.5 A few works do delve into the federal relationship between Quebec and the rest of Canada in great detail, but they tend to reinforce the division of the country into “two solitudes.” Christopher Taucar is intent on demonstrating that Quebec’s critique of Canadian federalism cannot be substantiated, and consequently Quebec’s quest for sovereignty is unjustified.6 More cogently, Alain-G. Gagnon and Raffaele Iacovino have highlighted what they consider to be “the deficient state of Canadian federalism and citizenship.”7 Similarly, Réjean Pelletier has attempted to demonstrate that Canadian federalism has locked Quebec firmly in a vice.8 There is thus a pressing need for a new historical synthesis that does not engage in blaming “the other.” More generally, on the 150th anniversary of the federation, there is a need for a new synthesis that brings the various parts of the long story of Quebec and Canadian federalism together in a single volume with one overarching narrative.
Democracy and Federalism
William Riker once claimed that to “find an association between federalism and democracy is, on the face of it, absurd.”9 He was trying to make the point ← 2 | 3 → that “federalism” can exist in both democratic and non-democratic regimes. The federal form—two orders of government with separate responsibilities—can certainly be found in non-democratic regimes, but the absence of democracy in these regimes undermines federalism, because “autocracy or dictatorship, either in the general governments or in the regional governments, seems certain, sooner or later, to destroy that equality of status and that independence which these governments must enjoy, each in its own sphere, if federal government is to exist at all.”10 Even Riker admitted that state rights were “meaningless” in the Soviet Union because the “majority of significant political decisions [were] made at the center.”11 Federalism thus requires democracy to be meaningful, but democracy is challenged by federalism. When Abraham Lincoln encapsulated the spirit of democracy as “government of the people, by the people, for the people,” he meant each person equally. But federalism introduces groups into the equation, be they constituted as states, provinces, cantons or landers. The recognition of groups presents a challenge to the democratic norm of “one person, one vote,” especially if the groups vary in size.
The Americans confronted the challenge of reconciling the claims of democracy and federalism at the Philadelphia convention in 1787. While it was clear that each state would have a democratically elected legislature with “one (white) man, one vote,” there was considerable debate about how to structure the national government. The Virginia Plan—drafted by James Madison but presented to the convention by Governor Edmund Randolph—called for a bicameral legislature based on representation by population in each chamber. Madison’s plan was endorsed by the large states at the convention. The small states, however, were alarmed by the prospect of being numerically overwhelmed by the large states in both chambers. New Jersey thus proposed a unicameral legislature with each state afforded one vote, as was the practice under Articles of Confederation. The small states rallied around New Jersey’s proposal. The impasse was broken by a proposal that each state should receive equal representation in the upper chamber of Congress, while the lower chamber should be based on representation by population. The Connecticut Compromise was eventually adopted, and it paved the way to the new constitution.12 Today, however, the compromise means that Wyoming with slightly over half a million people has two senators just like California with its population of almost 40 million people. US Senate elections thus do not exactly conform to the democratic norm of “one person, one vote.” Indeed, the twenty-six smallest states—which could defeat a bill in the ← 3 | 4 → Senate if they voted as a block—represent just 16 percent of the population of the country. The recognition of states as equal entities in the Senate thus sits in tension with the fundamental principle of democracy.
In Canada, the Fathers of Confederation wrestled with many of the same issues as their American counterparts, but among the English-speaking fathers, especially from Canada West (as it was known colloquially in the 1860s), the democratic impulse was much stronger and the federalism impulse considerably weaker. Sir John A. Macdonald was famously ambivalent about federalism, calling for a legislative union of all the colonies. And George Brown was adamant that the new government of Canada had to be based on representation by population. But for the French-speaking delegates from Canada East federalism was the sine qua non for any kind of political union with the Anglophone colonies. From these diametrically opposed positions, the Fathers of Confederation proceed to negotiate a federal union with a constitution similar in principle to that of the United Kingdom. Peter Russell has captured the essence of the Canadian bargain more succinctly than anyone else. “At its core,” he writes,
was a recognition that if English Canadians and French Canadians were to continue to share a single state, the English majority could control the general or common government so long as the French were a majority in a province with exclusive jurisdiction over those matters essential to their distinct culture.13
Clearly, the Fathers of Confederation viewed federalism as a way to accommodate Canada’s French-speaking minority.
Contemporary democratic theorists also view federalism as an important accommodative institution. Arend Lijphart has famously classified the world’s democracies as either majoritarian or consensual, and he argues that consensual democracies are more appropriate in plural or deeply divided societies. In plural societies, Lijphart argues, “majority rule is not only undemocratic but also dangerous, because minorities that are continually denied access to power will feel excluded and discriminated against and may lose their allegiance to the state.”14 Plural societies require “a democratic regime that emphasizes consensus instead of opposition, that includes rather than excludes, and that tries to maximize the size of the ruling majority.”15 Lijphart suggests that majoritarian and consensual democracies may be differentiated by ten characteristics spread along two axes: the executive-party dimension and the federal-unitary dimension. On the executive-parties dimension, the differences are as follows: ← 4 | 5 →
1. Concentration of executive power in single party-majority cabinets versus executive power-sharing in broad multiparty coalitions.
2. Executive-legislative relationships in which the executive is dominant versus executive-legislative balance of power.
3. Two-party versus multiparty systems.
4. Majoritarian and disproportional electoral systems versus proportional representation.
5. Pluralist interest group systems with free-for-all competition among groups versus coordinated and “corporatist” interest group systems aimed at compromise and concertation.
The five differences on the federal-unity dimension are the following:
1. Unitary and centralized government versus federal and decentralized government.
2. Concentration of legislative power in a unicameral legislature versus division of legislative power between two equally strong but differently constituted houses.
3. Flexible constitutions that can be amended by simple majorities versus rigid constitutions that can be changed only by extraordinary majorities.
4. Systems in which legislatures have the final word on the constitutionality of their own legislation versus systems in which laws are subject to a judicial review of their constitutionality by a supreme or constitutional courts.
5. Central banks that are dependent on the executive versus independent central banks.16
On these criteria, Canada would appear to be something of a hybrid. On the party-executive dimension, Canada conforms almost entirely to the majoritarian model of democracy: a concentration of executive power in single-party majority cabinets, executive dominance of the legislature, two dominant parties in the system, a majoritarian electoral system, and a pluralist interest group system. But on the federal-unity dimension, Canada conforms almost perfectly to the consensual model of democracy: a highly decentralized federal system, a bicameral legislature (albeit with a strong lower chamber and a weak upper chamber), a rigid constitutional amending process, judicial review with an independent and powerful Supreme Court, and an independent central bank. Paradoxically, however, linguistic accommodation has been obtained primarily through Canada’s much vaunted tradition of brokerage party politics,17 while federalism has been a perennial source of tension between Quebec and the rest of the country. In short, Canada appears to have a consensual party system and majoritarian federalism. ← 5 | 6 →
- ISBN (PDF)
- ISBN (ePUB)
- ISBN (MOBI)
- ISBN (Hardcover)
- Publication date
- 2018 (April)
- New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2018. X, 310 pp.