moved:
That, in the opinion of this House, the government should support equality among the provinces and Canadians in general by ensuring that no province be recognized as a distinct society within the Constitution of Canada.
Mr. Speaker, it is my pleasure to begin debate on the private member's motion before the House.
In light of the recent Calgary declaration the merit of the motion should be self-evident to all Canadians. Given the desire of traditional parties to cling to the concept of distinct society, I am under no illusions about the criticism they will offer today.
To start, there will be those who will criticize the initiative before us as being anti-Quebec. To those who feel this way I respond in advance that like the Calgary declaration the motion is not anti-anything. It is in essence pro Canadian. It is crafted with the desire to create a new Canada where everyone is proud to be a Canadian.
I say this with a great deal of confidence. The motion before us is pro Canadian in the sense that it recognizes a fundamental principle held in the hearts of all Canadians, namely that we are all equal.
The motion before us is about advancing the principle of equality among all Canadians and entrenching the paramount importance of individual rights. The protection of individual rights is also significant. One of the major faults in the Meech and Charlottetown accords was that they sought to constitutionally entrench a collective right. In doing so, there would have existed within the Canadian constitution the potential that individual rights could be made subservient to the collective right of a distinct society.
This argument was based on the widely held and correct perception among Canadians that recognition of Quebec as a distinct society would confer some collective right on the peoples of that province not conferred on the others. Therein lay the problem and the dilemma faced by constitutional framers and politicians, the same people who tried on numerous occasions to ram distinct society through with little or no regard for the real feelings of Canadians.
What was the response from the traditional party leaders at the federal and provincial levels? They resorted to labelling anyone who opposed the distinct society initiative as unpatriotic. They also played on the fears of Canadians by saying that the country would fall apart without such an amendment to the constitution. The country is still here.
Worse still, there was a deliberate attempt to mislead Canadians about what distinct society really meant. At the time we had the former prime minister of the last place party telling Canadians outside Quebec that distinct society was nothing more than a symbolic recognition of that province's place in Confederation.
I want to briefly touch on that symbolic recognition. This is what distinguishes the Calgary declaration from Meech and Charlottetown. Meech and Charlottetown attempted to entrench distinct society as an interpretive clause which would give additional powers to Quebec. The Calgary declaration does nothing more than recognize what is a historical fact accepted by Reformers and Canadians in general, principally that the language and culture of Quebec make it unique but, and here is the key, this fact in no way takes away from the equality of Canadians or confers additional powers to Quebec.
That was the problem with Meech and Charlottetown. Both initiatives tried to craft this historical recognition into a constitutional power afforded only to Quebec.
All the while and within Quebec the former prime minister and the late Premier Bourassa were saying just that. To hear them tell it, the clause would be used to enhance that province's powers within federation.
The federal doublespeak and actions on distinct society would be quite funny if they were not so terribly sad for the future of the country.
I also want to deal with what I see is the potential harm in the collective right of distinct society ever becoming entrenched. Granted this will be speculative because thankfully the clause is not in the Constitution. That has more to do with the wisdom of Canadians than it does the foresight of traditional politicians who even now think entrenchment of distinct society will solve the unity problem.
In any event, the arguments concerning the potential harm of entrenching distinct society are speculative but they are not without a historical precedent to back them up.
I want to briefly discuss the precedent. The lessons and arguments in that instance will serve to highlight what I feel are the pitfalls where distinct society is concerned. Patriation of the Canadian Constitution was achieved to some degree because the federal government was able to secure an agreement with nine of the ten provinces. The federal government had acted unilaterally but the Supreme Court of Canada ruled that some provincial support was needed.
The impact of that court decision would figure prominently in the effort to settle on a text for the Constitution, but in the finished document that became the Constitution Act, 1982, there also was a clause known as the notwithstanding clause. This clause was part of the price the federal government had to pay for getting an agreement on the Constitution.
The rationale behind the notwithstanding clause was to place some kind of a constitutional check on the powers of the federal government. At the time some premiers believed this was needed to in part prevent legislation or new spending initiatives which might cross into areas of provincial jurisdiction. It was also believed that this clause would help in securing Quebec's signature on the Constitution.
Aside from the rationale and intentions behind the notwithstanding clause, good, bad or otherwise, there were those who saw the potential danger in having a constitution which could allow a province to disregard federal legislation or a ruling by the supreme court concerning the constitutionality of a provincial law.
This potential danger is significant because the arguments used to downplay the consequences at that time are the same ones used now with respect to distinct society. In this regard it is no small wonder then that Canadians feel successive governments have learned nothing from past constitutional experiences. They have little or no faith in the sincerity of politicians to do what is best or in their ability to deal with the national unity problem.
This is truly tragic. And as someone whose name escapes me at the moment once said, “Those who do not learn from the mistakes of the past are destined to repeat them.”
What were those dire consequences that some predicted would befall the notwithstanding clause? Canadians with enough foresight saw that a province might use the clause to override the charter of rights and that in so doing, the rights of individuals in that province could be damaged. That is exactly what did happen.
But we need not concern ourselves with the circumstances under which the use of that clause came about. We will visit that in due course. What is now relevant were the arguments used at that time to allay fears that the notwithstanding clause would ever be used by any province.
I think we remember them well. They are hauntingly familiar to those used by former and present governments seeking to mollify Canadians about the constitutional impact of the distinct society provision.
As I said, in response to a well-founded fear that some province might use the notwithstanding clause, the government of the day sought to minimize the chance of this ever happening. The political media and to a lesser extent, the academic elites, said “Oh, this will never happen. No province would ever use the notwithstanding clause. The political price of using it would be too great for any province. The court of public opinion in that province would stop a government from invoking the clause” and on and on it went.
Basically, the predictions were ignored and political leaders felt secure in their belief that the override provision would never, ever be used. But of course they were wrong.
Let us fast forward from 1982 to 1989 when the Government of Quebec invoked the notwithstanding clause. The province did this in response to a Supreme Court of Canada ruling which found Quebec's language law, bill 178, to be unconstitutional and violated the Canadian Charter of Rights and Freedoms.
I am not so much interested in why the notwithstanding clause was used. It is far more revealing to delve into parallels between the potential dangers it posed and those which by extension are inherent in the distinct society clause.
The politicians of the day had not been completely wrong about the effect of public opinion surrounding Quebec's use of the notwithstanding clause. The problem was that the court of public opinion did not change a thing and its full impact reaction was well after the fact.
Still, some negative fallout was incurred by the Quebec government on the issue. For as constitutional as their use of the notwithstanding clause had been, it did not sit well with people inside and outside of Quebec who expressed concern that the provincial government had effectively trampled on the rights of English speaking Quebeckers.
What was needed then was an amendment to the Canadian Constitution, one that would allow Quebec to side step the charter of rights in matters such as language and not put the province in the awkward position of having to use the notwithstanding clause in order to do it. Such an amendment must allow the province of Quebec to make laws similar to bill 178. However, it must also ensure that such laws could not be challenged as unconstitutional.
In short, the Canadian Constitution would have to be interpreted in such a way as to recognize the province's rights to make such laws.
From the very beginning of that notion is born the idea of distinct society, in effect, an amendment which would allow Quebec to override the Constitution by giving it the power to take whatever steps were necessary to preserve and promote Quebec as a distinct society.
Let us now examine the predictions and the potential dangers of how a distinct society clause might truly impact on the Constitution. Indeed, the alarm bells that went unheeded with respect to the notwithstanding clause are the same ones ringing again over distinct society today.
If, as governments in Quebec have demanded, the Canadian Constitution and charter of rights must be interpreted in a fashion that recognizes Quebec as a distinct society, what happens in a situation where individual rights, such as freedom of expression, conflict with this collective right based on culture and language?
Actually the question is rhetorical because we all know the answer. It is just that there are those who are loathe to admit it, or refuse to accept it, or do not want the rest of the country to really understand it.
Using the situation surrounding the supreme court's consideration of Quebec's bill 178, a distinct society clause would have allowed the supreme court to come back and say bill 178 was constitutional. The highest court in the land would have been able to say this. “The law must be considered in light of a clause which states that the Constitution shall be interpreted in a manner consistent with the recognition that Quebec constitutes a distinct society”.
That is right. No messy or unpalatable use of a notwithstanding clause. No federal government interference because the federal government would say that it cannot do a thing, the supreme court has ruled and that decision must be respected.
This sounds familiar. It is what every traditional politician likes to do when there is a controversy. Toss it to the court if possible. At least then voters will not be able to blame government for the consequences of its inactions.
In order that all MPs will be given a say in this matter, I ask for the unanimous consent of members present to make this motion votable.
