Son of a Meech

Irecall my childhood friend Shawn and I laughing in our beds during a sleepover, reading quips from “Son of a Meech: The Best Brian Mulroney Jokes” by Mark Breslin, a book I had found in my father’s study.

Primary school age, most of the jokes went over our heads, but the puerile nature of the humour and coming of age in the late 1980s and 1990s at our elementary school in the Eastern Townships, where we were greeted with “Va chier les Anglais” written in cement graffiti on the century-old bell tower as we entered school every morning, provided us insight. The tensions of 1995 referendum played out on the school yard, where children played ‘tag’ with the ubiquitous ‘NON’ textile patches adorning their shoulders.

In the post-bellum application of Bill 101, the first referendum, Meech Lake and Charlottetown Accords and the second referendum, we understood enough of Quebec and Canadian politics to grasp the absurdity of the jokes and the conflict of English-French language groups and federalist-separatist divides.

I was always taught to “never speak ill of the dead” in the Eastern Townships. I did not know Mr. Mulroney personally, have deep respect for his accomplishments and was partly inspired to attend law school at Laval University because of his own attendance, yet I have observed that a true accounting of his political legacy and the former Progressive Conservatives on Quebec issues seems conspicuously absent from obituaries.

One long-time commentator and bureaucrat said to me several years ago, “it is amazing how much of Meech Lake and the Charlottetown Accords has come to pass.”

And, in the worst possible way. What has transpired?

Delegitimization of the Canadian Constitution

Mulroney swept to power in 1984, with the promise of reconciling Quebec with the 1982 Constitutional changes.

This fanned the flames of Constitutional illegitimacy. Despite widespread political belief, this is legally and factually untrue.

“We didn’t sign the Constitution,” is a constant refrain from Quebecers of nearly all political stripes. I did not understand how the Canadian Charter and the 1982 Constitution applied to Quebec without our consent until I attended law school. Of course, the 1982 Constitutional amendments are valid legally and constitutionally without Quebec’s legislative approval. This was ruled upon twice by the Supreme Court of Canada, with Quebec making numerous arguments about “special status” and a veto that were quashed by the Court. (I think the 1982 amendments are erroneously referred to as repatriation, as Canada is still technically a creature of a law of the UK Parliament).

Constitutional amendments

At least with the Meech Lake and Charlottetown Accords, they were legitimate Constitutional amendment proposals, approved by provincial and federal legislatures, and in the latter case put to a vote in a national referendum. There was debate, democratic institutions were used, and Canadians had a societal debate on the nature of our country.

The Canadian Constitution is being amended willy-nilly by provincial legislation, under the false aegis of provincial constitutions, as mentioned in section 45 of the 1982 Constitution. Provincial constitutions do exist, little talked about until Bill 96’s amendment, and are a mix of local laws (which can be considered quasi-constitutional), unwritten rules from the UK, the date of reception of British Common Law, and their jurisdictions under the 1867 Constitution. A province can unilaterally amend aspects of its internal Constitution, falling with the framework of the Canadian Constitution. However, until 2021, formal amendments to the written Constitution outside the formal amending procedures, were thought unthinkable.

Quebec’s own school boards were “secularized” (in the literal sense, by removing religious oversight and administration and most religious teaching from public schools, not the prejudicial Charter of Values / Bill 60 / Bill 21 sense focusing on vestigial dress codes) in 1998 and made language specific with a formal Constitutional amendment, made by a separatist PQ government in Quebec City. The Parliament of Canada and the Legislature of Quebec voted through resolutions, using the bilateral amending formula of the 1982 Constitution.1 I still remember the day, as an 11-year-old, where we were no longer required to say ‘Grace’ before lunch.

However, “soft law” amendments to the Constitution (procedure and rules) have radically changed the selection of Supreme Court Justices from Quebec and Senate appointments, alongside “hard” amendments to the written Constitution passed twice by Quebec and the Saskatchewan governments.

One of the Constitutional amendments reads as such:

Oath act;

The Constitution Act, 1867 is amended by inserting the following section after section 128: “128Q.1. Section 128 does not apply to Quebec.”

Distinct society clause

The Meech Lake Accord proposed a “distinct society” in Section 2 of the 1867 Constitution, acting as an interpretive clause for the entire constitution. The Charlottetown Accord included the re-branded, and somewhat Orwellian, Canada Clause, which included Quebec’s distinct society.

These clauses were thought to be so incendiary that significant public sentiment for and against was a key undercurrent in both debates; too much for many, not enough for some. In part, contributing to the odd outcome of the Charlottetown Accord vote, that Ontario approved it, and Quebec voted against it.

This has all metastasized in Bill 96’s controversial unilateral constitutional amendment.

The amendment proclaims a Quebec nation in two distinct ways: “Quebecers form a nation”: a sub-provincial, sub-national ethnolinguistic group recognized in our Constitution. Hitherto unknown concept of recognizing a people as a nation in our Constitutional framework. And, a “Quebec nation”: Quebec is recognized as a province with a defined territory, defined jurisdictions, and legal status in the 1867 Constitution. This territorialized the concept of nationhood. Nation is once again inserted into a Constitution with a binary power structure: the federal government and provincial governments. A “nation” is not contemplated in our Constitution.

Until now.

Bill 96:

The Constitution amended by inserting: “FUNDAMENTAL CHARACTERISTICS OF QUEBEC” “90Q.1. Quebecers form a nation.” “90Q.2. French shall be the only official language of Quebec. It is also the common language of the Quebec nation.”

Act, 1867

Supreme Court Justices

is

The appointment of Supreme Court justices, a prerogative of the Prime Minister, would be drawn from a selection of names provided by the provincial governments under the Meech Lake Accord.

An intergovernmental agreement, “Arrangement concerning the appointment process to fill the seat that will be left vacant on the Supreme Court of Canada following the departure of Justice

Clément Gascon,” was endorsed on May 15, 2019 by the Governments of Canada and the Government Quebec.

The Prime Minister must consider a shortlist from the Quebec Minister of Justice and Premier before selecting a SCC Justice from Quebec.

Yes, Francois Legault helped select Nicholas Kasirer.

The SCC and the federal Government that chooses them represent all Canadians, including Quebecers, and the province of Quebec should not be choosing or recommending one-third of SCC judges which interprets “the law” for all Canadians at all levels of private and public life.

An undertaking by the PM to appoint someone from a provincial short-list, or to appoint a single name provided by a province, or a de-facto practice where appointments are made in this fashion, is subversive of the Constitution and of the public interest.

Additionally, the SCC Justices from the Rest of Canada Independent Advisory Board for Supreme Court of Canada Judicial Appointments explicitly seeks only bilingual Justices and has limited selections to certain provinces, both aspects that were once informal Constitutional conventions.

Asymmetrical Federalism

The legacy of Progress Conservative turmoil encapsulates dangerous pandering to Quebec nationalism and specificity in the worst possible and asymmetrical way: Quebec would have rights that no other province or region has.

Additionally, the French-language is presented as the sole defining characteristic of Quebecers.

For the reasons above, this has largely been achieved: a de facto and de jure (legal) “sovereignty association” with the Rest of Canada.

Conclusion

The toxic cocktail, shaken and stirred, by Mulroney’s Progressive Conservatives haunts us still.

The question of the dissolution of Canada or whether Quebec can have a separate society in Canada is still being decided, this time, in the shadows and in obscurity.

Such is the current day, largely unspoken, constitutional crisis:

Our Constitution is no longer inviolable in Quebec;

Quebec has a distinct legal status no other province has;

Supreme Court Justices from Quebec are shortlisted by Quebec for the Prime Minister;

The Charter of Rights and Freedoms can be largely nullified through the Notwithstanding clause.

The Quebec and Canadian governments have worked in concert on these initiatives. We are all now the ‘children of Meech’.

What is to stop the Quebec Government, in the near or distant future, from passing provincial legislation stating the Declaration of Union is:

The Constitution Act, 1867 is amended by inserting the following section after section 3: “3Q.1. Section 3 does not apply to Quebec.”

Thus, dissolving Quebec’s place as a province in Confederation.

As it currently stands, politically and legally, nothing.

This appears to be the intent.

Colin Standish is the founding leader of the Canadian Party of Quebec.