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Bill 96: The perils of ‘pensee unique’ | Julius Grey

Wednesday, May 26, 2021 @ 10:51 AM | By Julius Grey

Julius Grey %>
Julius Grey
Those who consider the proposed Quebec constitutional amendment to be purely declaratory with no effect are confusing the content of the amendment with its insertion into the Constitution.

The content is indeed uncontroversial. Both Parliament and the National Assembly have recognized Quebec as a “nation” or un peuple and no one now disputes this description. It is also clear that Quebec society resembles homogenous national states such as Denmark or Poland more than the aggregations of communities we see in the rest of Canada. It is not clear what advantage being a nation gives to its members, but at the very least it confers the right of self-determination. This right is now recognized in international law and also in Canadian law since the secession reference in the Supreme Court. In any case, it would be unthinkable to hold an unwilling province by force and therefore, by itself, the recognition of national status adds nothing concrete.

Recognizing French as the only official language in Quebec merely affirms The Charter of the French Language which is also generally accepted. No one seeks official status for English anymore except to the extent it is specified in the Constitution. Nothing radical has been proposed.

Yet this ignores the presumption that legislation is supposed to have an effect and not be purely declaratory. It also ignores the prestige which incorporation into the Constitution gives a law and the fact that the presence of such a clause could be used to justify attempts to dilute the right to use English in the National Assembly and the courts as well as the scope of guarantees of English schooling. Already, Bill 96 limits, presumably unconstitutionally, the extent to which court proceedings can be drafted in English only. A unilateral amendment of the Constitution would undoubtedly be considered by its sponsors as evidence that Canadian laws should be applied differently in Quebec. This is why it is impossible to consider this as an amendment to the constitution of Quebec such as the abolition of the provincial senate. The effect of this clause would be to modify the use of federal laws and the Canadian Constitution in Quebec.

In fact, such a result is a certainty, even if it is not at present intended by all proponents of the law. This has to do with the dynamics of nationalism everywhere, not just in Quebec. Support for nationalism is rooted in “identity” not in logic. Whenever “national” concessions are granted they bring no real advantage to those in thrall to nationalism, except perhaps some leaders. Therefore, a few years later, the leaders are forced to make new claims, saying that what they got was not enough. Otherwise they would have to concede that the “national” goals were an error, which they never want to do. The escalation of Quebec’s demands since 1970 shows that no equilibrium is ever reached and by looking at Catalonia and Scotland we would find that this is a general principle present across the globe. 

But there is another possibility which must be considered. Many sovereignists have concluded that a referendum victory for their cause is very unlikely because voters will always fear immediate economic consequences. Many now see independence as possible only on the instalment plan. Bill 96 and its Constitution amendment may well be one of the instalments.

One must state at once that there is nothing reprehensible about Quebec independence, even if many Quebecers do not desire it. Pierre Trudeau, who was no separatist, said that “it would not be the end of the world” and indeed it would not be. In fact, Canada gained independence in stages — dominion status in 1867, the tariff shortly afterwards, the Statute of Westminster, separate citizenship (only in 1947) and finally repatriation. Quebec could do the same. But if such is the goal of the Quebec government, it should state it frankly and openly and not seek sovereignty by the backdoor. All Canadians of both languages deserve that. Unfortunately, if this is the goal, the Quebec government will never admit it.

The danger of this type of constitutional amendment is exacerbated by the fact that we have become a society of pensée unique on controversial questions. It is disturbing that none of the opposition parties in the National Assembly or the four major federal parties has questioned Bill 96 or even its constitutional change. In such a world, one could stumble into a major rupture in Canada without a serious debate. It is to be hoped that the courts, less constrained by the pensée unique or the need to win seats in the next election, will strike down the amendment and declare that the Constitution of Canada continues to apply in its entirety. 

Montreal human rights lawyer Julius Grey is founder and senior partner of Grey Casgrain which he founded in 1976. In 2004, he was awarded the Médaille du Barreau du Québec, the highest distinction of the Quebec bar.

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