(Still) in Search of the Federal Spirit

To what degree, then, are the recent actions of the Quebec government and the central state in conformity with the federal spirit? First, have they respected the principle of ‘self-restraint’? In other words, have they taken into account each other’s interests when exercising their own constitutional powers? Second, what about damage limitation? Have they exercised their powers in such a manner as to avoid harm to other parts of the federation and to the federation as a whole? Third, have they respected moral imperatives? Have they acted in accordance with the underlying unwritten constitutional norms that together comprise the substantive meaning of the written constitution? Finally, did they embrace the principle of political empathy and were their actions led by a spirit of partnership that incorporates friendship, understand­ing, mutual trust, respect and good faith?

Let us begin by appraising the Quebec government’s actions.

Nevertheless, examining the 2017 Policy for Quebec Affirmation and Canadian Relations, it is fair to say that it aims at better articulating its quest for auton­omy and self-determination while expressing self-restraint. In fact, this policy might be one example of how the federal spirit can and should be integrated with the discourse among partners in a multinational federal democracy (see Burgess and Gagnon 2010). By explicitly stating Quebec's demands, con­sidering the issues that deeply concern the other minority partners in the federation—in particular the Indigenous peoples and the French-speaking minorities outside of Quebec—and the need for Canadian federalism to be fair to every partner—including, of course, the anglophone majority—the Policy not only lived up to the principle of self-restraint, but was undoubtedly inspired by those of damage limitation and political empathy. It is consistent, too, with the underlying constitutional principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities (see Mathieu and Guenette 2019).

The 1980, 1992 and 1995 referendums followed rigorous democratic rules, and the way they were institutionalized provided some damage-limitation mechanisms. For that matter, they worked out in accordance with the under­lying constitutional principles the see had identified in the Reference Case re. Quebec Secession. And, with regard to the protection of minorities, the pq government had several times made clear at that were Quebec to gain inde­pendence, its anglophone minority would enjoy the same set of rights and pro­tections as in the Canadian federation. Moreover, there is no reason to believe that a newly independent Quebec would have acted against its own charter of human rights and freedoms, adopted in 1975. That said, Jacques Parizeau's unfortunate comments on the eve of the lost 1995 referendum—in which he attacked big capital and ethnic minorities, and then spoke of ‘we' the Quebec people plainly conceived of as the heirs to yesteryear's French Canadian, con­tinue to haunt the pq foryears.

Nonetheless, Rene Levesque and subsequent leaders accustomed Quebeckers to a more balanced vision of the Canadian federation: after all, as Levesque put it, Canada cannot be described as a gulag for Quebec.

Without any doubt, Brian Mulroney's desire to meet Quebec's conditions for it to rally the 1982 constitutional reform—mostly through the Meech Lake Accord—was driven by a sincere commitment to the federal spirit. To a certain degree, Stephen Harper's ‘open federalism' was committed to a similar vision, although its initial promise was not translated into lasting actions.

The central state's actions over the past 50 years generally lacked apprecia­tion of the federal spirit. Clearly, it did not respect the principle of self-restraint with its patriation of the constitution in 1981-2. Not only did the patriation reduce the powers of Quebec's National Assembly, but it did so without its consent. This was a clear violation of the principle of political empathy, and harmed Quebec's desire to be recognized as a distinct society and national community within the Canadian federation. It also violated the underlying constitutional principle of ‘democracy', since Quebec never consented to changing the fundamental law of the country. Moreover, the scc, in defining the principle of democracy, indicated that ‘in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less “legitimate” than the others as an expression of democratic opinion' (Supreme Court of Canada 1998, par. 66). This conception of the democratic principle was clearly missing at the time of the patriation.

Above all, the patriation took place after Pierre E. Trudeau's declaration, at the time of the 1980 referendum, that he and his party would make appropriate constitutional changes that would satisfy Quebeckers, and that they could be trusted to do so. This line of action, in sharp contradiction to ‘a spirit of part­nership that incorporates friendship, understanding, mutual trust, respect, and good faith', to return to Burgess (2012, p. 21), would eventually guide the program of another Liberal government in the second half of the 1990s.

Instead of echoing the scc's decision in the reference case, and thereby building a new space for a fruitful dialogue between the Quebec government and all the other partners in the federation, the government in Ottawa adopted the Clarity Act in 2000. As we have already seen, the Clarity Act was marked by a complete lack of self-restraint, damage limitation and political empathy. As Guy Laforest characterized it, the whole idea was to make Ottawa the sole senior government in Canada, while the provinces, and especially Quebec, would act as junior governments. Thus not only would the senior government have the sole authority to declare whether the results of a referendum were clear enough, but it had the leeway to do so after the votes had been counted.

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