A Distinct Society Within Canada

The legal impacts of the 1982 Constitution Act on the province of

Québec

Name of student: Dzifa Akakpo

Student number: 002270566

Course: HIS211 - Canada since 1945

Word count: 2497

During the parliamentary session on the 22nd of November 2006 a motion was passed, recognizing

the province of Québec as a nation within Canada. This acknowledgement came after decades long

effort of the Québécois to preserve their culture as a francophone minority region in Canada. This

continuous effort was a main theme during the patriation of the Constitution in 1982. Its legal

impacts leading to Québec striving to be recognised as a distinct society or nation. This quest

towards recognition is deeply rooted in the history of Canada, tracing its roots back to the

colonisation of New France. It reached a critical point in the latter half of the twentieth century when

certain events were catalysts to contemporary Quebecois nationalism leading to Québec’s current

ambiguous legal status within Canada.

The deeply rooted difficult relationship between English Canada and French Canada started when the

Province of Quebec was brought under British rule following the Royal Proclamation of 1763. The

difference between the governing styles of the regions were in conflict with each other and it created

a certain tension. Quebec, part of New France, was mostly governed under the seigneurial system of

New France with Catholicism being very prominent in society. The seigneurial system, a semi-feudal

system of land ownership, and the extensive practice of the Catholic faith were perceived to be

obstacles to successfully turning the Province of Quebec into a proper British colony.1 In order for the

French Canadians to become active in public offices they had to renounce their catholic faith as part

of an oath to the British king. Many French Canadians were not willing to renounce their faith and

thus became excluded from participating in local governance. Since British settlers were

outnumbered the governors had to rely on the francophone and catholic majority to govern

effectively. In order to appease the francophone majority and get better control over Quebec, British

Parliament passed the Quebec Act in 1774. This Act restored the French civil law system instead of

British common law, re-established the seigneurial system and granted the inhabitants of Quebec

1
Paul Philips, “Land Tenure and Economic Development: A Comparison of Upper and Lower Canada”, Journal
of Canadian Studies 9:2 (Summer, 1974) p. 37
freedom of worship2. The 1792 Constitution Act divided the colony into Upper Canada with the

British common law system and Lower Canada with the French civil law system retaining the same

privileges it gained under the Québec Act3. These shifts can be interpreted as laying the foundation

for the differences between francophone and anglophone Canada which had a profound impact on

the way Quebec would develop itself as a unique society compared to the rest of Canada.

The Act of Union in 1840 united Upper Canada and Lower Canada under one government creating

the Province of Canada, Québec came under rule of a mainly anglophone Assembly which worsened

relationships with the francophone community. In 1867 the Canadian Confederation united the new

provinces of Québec and Ontario together with Nova Scotia and New Brunswick. This made the

francophone population a minority. This move into confederation was only approved after the

Catholic Church officially supported the Pro-Confederation forces, being persuaded on the idea that

the separation of the Province of Canada into two separate provinces would give French Canada its

identity back. The use of French or English in parliamentary sessions was included, indicating the

bilingual nature of the colony in the 1867 British North America Act under Article 133 stating that

“Either the English or the French language may be used by any person in the Debates of the Houses

of Parliament and the Houses of Legislature in Quebec”4 also in a more indirect way Article 93

stipulates that education is to be regulated at the provincial level, however regulations were not to

infringe on the rights of denominational schools5, protecting religious minorities in the provinces. It is

important to know that language and religion during that time were closely linked.6 This idea of

protecting minority rights, notably coming down to school rights for minorities, was an important

aspect of Canadian politics in the nineteenth century.

2
Philip Lawson, “Sapped by corruption: British Governance of Quebec and The Breakdown of Anglo-American
Relations on The Eve of Revolution”, Canadian Review of American Studies 22:3 (Winter, 1991), p.307.
3
Ibid., pp. 307
4
British North America Act 1867, (GB), s. 133
5
Fernand Harvey, “French Canada and the Language Issue”, in the Conseil Supérieur de la Langue Française,
The French Language in Québec: 400 Years of History and Life. Part three (Québec City, 2008), p. 5.
6
Ibid., pp. 4
The following decades Quebec’s relationship with the other provinces from the Confederation

deteriorated. Several crises’ negatively impacted the relationship as well as the declining economic

situation in Quebec. Quebec was not as developed in economic terms compared to the rest of the

provinces. Increased feelings of disenfranchisement in the francophone community strained its

relationship with the anglophone community further. Provincial autonomy was perceived to be the

root of the survival of the francophone identity and a considerable amount of French Canadians felt

forced to assimilate into English Canada.7 This feeling of disenfranchisement would be the main

cause of tensions between English-Canada and French-Canada and is where nationalist movements

would draw their main arguments from.

French-Canadian nationalism in that time was mainly based on getting rights for religious minorities,

the minority being catholics in a state dominated by protestant Anglicans. The Catholic Church was

deeply ingrained into Quebec society, being involved in social, cultural and political life controlling

areas such as education and health services. Under Maurice Duplessis governance, Québec

experienced a time of political corruption with the Catholic Church supporting its policies.8 This

period is also known to many Quebeckers as le Grande Noirceur. Québec at this time was a

traditionalist sometimes even rural society, although it had the ambitions of developing in a highly

industrialized and urban society, due to Duplessis conservative policies and was underdeveloped in

terms of economic and social development.9 This changed in the 1960s when a new Liberal

government was elected to the Assemblée Nationale. With Jean Lesage, a significant shift occurred.

This shift, named the Quiet Revolution, rapidly evolved Quebec into a secular society with the power

7
Michael D. Behiels, “Francophone-Anglophone Relations”,
<https://www.thecanadianencyclopedia.ca/en/article/francophone-anglophone-relations> (March, 2015)
8
Michael D. Behiels, Prelude to Quebec’s Quiet Revolution: Liberalism versus Neo-Nationalism, 1945-1960
(Kingston, 1985), p. 366
9
François Rocher, “The Evolving Parameters of Quebec Nationalism”, International Journal on Multicultural
Societies 4:1 (2002), pp. 74-96
of the church being severely diminished, the nationalization of economic structures which enabled

French Canadians to work in French and increased nationalism.10

During the Quiet Revolution French-Canadians first used the term: Québécois to empower

themselves inspired by nationalist movements. Québécois meaning: being of Québécois heritage, not

necessarily French which French-Canadian implied. This can be attributed to a boost in confidence

after new economic policies developed Quebec into a more modern society, as well as more interest

in distinguishing themselves from English-Canada.11 The Quiet Revolution had a thorough impact on

the Québécois identity and laid the base for Québécois nationalism which would affect the Canadian-

Québécois relationship in the decades to come. The history of Québécois struggle inspired the

foundation of Quebec nationalism and serves as a prologue to the conflict which arose from the

sixties onwards as well as the start of seeking recognition of their unique society.

In 1968, the Parti Québécois was founded by René Lévesque as merger between several separatist

movements who were discontent with the Québec Liberal Party’s rejection of a proposal about a

sovereign Quebec striving for an independent Québec. The party won the 1976 regional elections

and under René Lévesque’s government the Charter on the French Language or Bill 101 was passed.

This bill declared Québec’s official language to be French, thus making the language of business and

education French, declaring that all commercial products in Quebec must be labelled in French or

with French dominance. It also restricted rights in relation to enrolment into anglophone schools. Bill

101 was highly controversial as it severely restricted the language rights of the minority anglophone

population in Quebec. The charter itself could not be declared unconstitutional as the British North

America Act, which served as the Constitution until 1982, had not included legislation in relation to

bilingualism except for Article 133 on the use of language in Parliament. The adoption of the Charter

10
Ibid., pp. 76
11
Ibid., pp. 77
of the French Language was another way of Québec distinguishing itself from the rest of Canada,

feeling the need to protect their culture and Québécois identity.

The election of Pierre Elliott would be a defining moment in Canadian politics. Under his government

impressive changes would be made to Canadian society and its legislation. As a staunch federalist,

Trudeau promoted national unity and valued equality amongst all Canadians which was

encompassed in his vision, the idea of a Just Society. An important part of implementing this Just

Society was patriating the Constitution to provide a strong legal framework written by and for

Canadians. Trudeau had tried to patriate the Constitution before, but never acquired the crucial

support from Québec to finalize the process. After the failed acceptance of the Victoria Charter in

1971 and other amendments in 1978, new developments regarding the constitution happened after

the 1980 Quebec referendum on independence when Trudeau promised that he would seek and

achieve new constitutional agreement if the ‘No’ side would win. Daniel Latouche argues that “The

clear results of the referendum, 60 percent to 40 percent in favour of a federal solution, were

interpreted as facilitating major constitutional changes.”12. However, Québec was the only province

not to sign the constitution rejecting it after careful consideration. The pitfalls of the Constitution Act

of 1982 referred to provincial autonomy and language rights as well a powerful myth about the

exclusion of Québec at an important accord which would lead a rejection on Québec’s behalf.

Section 23 of the Canadian Charter for Rights and Freedoms guarantees rights for language based

minorities in regard to education. Citizens of Canada who speak French or English and are part of the

linguistic minority in the province they reside in, have the right to have their children receive

education in the minority language. This section would make Article 73 of the 1977 Quebec Charter

of the French Language unconstitutional which stated that only children whose parents had enjoyed

education in any language other than French in Québec would be eligible for education in that

12
Daniel Latouche, “Problems of Constitutional Design in Canada: Quebec and the Issue of Bicommunalism”,
Publius Bicommunal Societies and Polities 18:12 (Spring, 1988), p. 137
language13. In other words, this Article would challenge the authority of the Quebec National

Assembly on linguistic legislation, which is of special importance to Québec.

Article 38 of the 1982 Constitution provides that constitutionals amendments can only be made after

approval of the Canadian parliament and the governments of at least two-thirds of the province

constituting at least fifty percent of the total Canadian population. It also provides an opt-out of an

amendment if it negatively impacts the legislative authority of the province. In case this proposed

amendment involves education or culture, ‘Canada shall provide reasonable compensation to the

province to which the amendment does not apply’.14 Québec found this completely unsatisfactory15.

Under the old constitution, Québec had a veto over future constitutional amendments being one of

the original founding provinces of the Confederation. Now, this absolute veto would be lost with this

new piece of legislation, damaging some of Québec’s power over anglophone Canada in

constitutional matters potentially blocking them from taking future actions against amendments that

would threaten the Québécois culture.

These legal impacts combined with the powerful Night of the Long Knives myth surrounding the

Kitchen Accord16, which presented Quebec as being betrayed by English-Canada once again, would

lead to Québec refusing to sign the Constitution. This resulted in the separatist movement gaining

more momentum seeing this move as another step towards finalizing the process of making Québec

a distinct society claiming it to be its own nation. Hereafter, the inclusion of recognition as Québec

being its own distinct society defined upon the culture and heritage which differentiates them from

English-Canada became one of its key conditions to endorsing the Constitution Act.

13
La Charte de la Langue Française 1977, (Québec) s. 73
14
Constitution Act 1982, (Canada) s. 40
15
Gil Remillard, “The Constitution Act, 1982: An Unfinished Compromise”, The American Journal of
Comparative law 32:2 (Spring, 1984) p. 276
16
The Kitchen Accord was the name given to the period of time wherein nine groups of delegates from the nine
out of ten provinces of Canada drafted a compromise proposal. This proposal would be endorsed by all the
governments of the provinces involved in the draft, except for Québec who was not present at the
negotiations.
Two failed attempts17 to persuade Québec to sign the constitution led increased questioning about

the nature of the Canadian society and the place of the Quebecois in it.18 Québec no longer decided

to follow a diplomatic course and opted for a more radical way to assert their status as a nation. The

1995 Québec Independence Referendum contained those very questions. Thousands of Canadians

rallied in Montreal to show the Québécois their appreciation and encouraged them to vote No. At

last, the No side won by a very small margin but now English-Canada had to act on what they showed

during the unity rally. Support for independence gradually decreased as support for federal

recognition increased. New debate over federal recognition of Quebec as a nation started again in

2006 leading to a motion passing the House of Commons on November 22 stating: That this House

recognize that the Québécois form a nation within a united Canada.19

The need for recognition as a distinct society or nation within Canada is based on the historical

background of Québec as a francophone region feeling the need to protect their own culture from

assimilation into the anglophone society. This protection was established in Québec through the

creation of linguistic legislation asserting French language supremacy in the province. With the

perceived threat of the Constitution Act removing that protective legislation and feelings of betrayal

and exclusion from political, Québec started its quest towards recognition as a nation in both radical

and diplomatic ways. Nowadays the Constitution remains to be signed by Québec. Constitutional

talks do not seem to be a matter of priority now, but amongst times of increased immigration and

fear of losing national identity the question of national unity appears to be more relevant than ever.

17
The Meech Lake Accord and the Charlottetown Accord were two failed attempts to include Québec in the
Constitution Act. Taking place in 1987 and 1992 respectively, the accords failed to gain support from the
provinces and the population.
18
Rhoda E. Howard, “The National Question in Canada: Quebec”, Human Rights Quarterly 13:3 (Summer, 1991)
p. 416
19
Canada, Parliament, House of Commons, Journals, 39th Parl., 1st sess., 2006, p. 811
Bibliography
Paul Philips, “Land Tenure and Economic Development: A Comparison of Upper and Lower Canada”,

Journal of Canadian Studies 9:2 (Summer, 1974) pp. 35-45

Lawson, Philip. “Sapped by Corruption: British Governance of Quebec and the Breakdown of Anglo-
American Relations on the Eve of Revolution”, Canadian Review of American Studies. 22:3 (Winter,
1991), pp. 301-323

British North America Act 1867, (GB) ss. 1-147

Harvey, Fernand. “French Canada and the Language Issue” in The French Language in Québec: 400
Years of History and Life. Part three, edited by La Conseil Superiéur de la Lague Française. Québec
City : 2008

D. Behiels, Michael. “Francophone-Anglophone Relations”,

<https://www.thecanadianencyclopedia.ca/en/article/francophone-anglophone-relations> (March,
2015)

D. Behiels, Michael. Prelude to Quebec’s Quiet Revolution: Liberalism versus Neo-Nationalism, 1945-
1960 Kingston: McGill-Queen’s University Press 1985

Rocher, François. “The Evolving Parameters of Quebec Nationalism”, International Journal on

Multicultural Societies. 4:1 (2002), pp. 74-96

Daniel Latouche, “Problems of Constitutional Design in Canada: Quebec and the Issue of
Bicommunalism”, Publius Bicommunal Societies and Polities 18:12 (Spring, 1988), p. 131-146

La Charte de la Langue Française 1977, (Québec)

Constitution Act 1982, (Canada)

Gil Remillard, “The Constitution Act, 1982: An Unfinished Compromise”, The American Journal of
Comparative law 32:2 (Spring, 1984) p. 269-281

Rhoda E. Howard, “The National Question in Canada: Quebec”, Human Rights Quarterly 13:3
(Summer, 1991) p. 412-419

Canada, Parliament, House of Commons, Journals, 39th Parl., 1st sess., 2006, p. 811