Bill 96 marks a bolder brand of unilateralism

There's no quid pro quo this time, Howard Greenfield and Mario Michas write.

With the federal election over, we turn to the hearings on Bill 96, draft legislation to strengthen Bill 101, coupled with a unilateral amendment to the Constitution to include nation status for Quebec with French as its common language.

Pierre Trudeau threatened the provinces with unilateral constitutional change in 1981 when negotiations over patriating the BNA Act broke down. But the provinces prevailed and unilateralism failed, with the Supreme Court ruling that in a federal state, no one level of government could impose constitutional change on the other without substantial consensus. Ottawa had to get back to the bargaining table with its partners in Confederation to bring the Constitution home from Great Britain.

The referendum question of 1995 on sovereignty contained the threat of unilateral secession within a year of a favourable vote if negotiations recognizing Quebec's independence failed during that period. Taking his cue from the Supreme Court's advice that a unilateral declaration of independence (UDI) would be illegal, Stéphane Dion retaliated with the Clarity Act in 2000. Premier Lucien Bouchard pushed back immediately with Bill 99, legislation declaring Quebec's constitutional status to be a matter of self-determination, uniquely for Quebecers to decide.

This left the way open to future attempts at unilateral action, and Bill 99 was to be tested before the courts over the next 20 years to decide whether the legislation purported to authorize a UDI.

The 2003 election returned the Liberals under Jean Charest with a majority. Sovereignty was sidelined, and the dawn of the new millennium saw Quebec's constitutional politics dominated by the old-style nationalism of Mario Dumont's newly created Action Démocratique du Québec. Isolationism replaced unilateralism, and for the next few years, the talk in political circles was about a written constitution for Quebec, authored by Quebecers alone. But the party never formed the government and those discussions faded along with its fortunes. As of today, British Columbia is the only province with a written constitution.

Bill 96 does, however, mark the first attempt by a provincial government to amend the Constitution of Canada unilaterally. Legalities aside, the political interpretation of this move is up for grabs.

The average Quebec anglophone likely sees the draft bill as a proposal for separation on the instalment plan, while his or her francophone federalist counterpart might view it as Quebec's first attempt since the Meech Lake Accord to incorporate its demands into the Constitution.

But the Meech Lake Accord had provisions that benefited all of the provinces and territories, like opting out of federal programs with financial compensation, and greater say in choosing Supreme Court judges. And those provisions that concerned Quebec alone, like the distinct society clause, were considered beneficial to the federation as a whole because they would have ended the constitutional feuding, with Quebec signing the patriated constitution.

Bill 96 provides no such quid pro quo, and the proposed amendment to the Constitution doesn't speak to the needs of any other province or territory.

In a federal state, the democratic franchise is exercised by the citizen at both a central and regional level. When one level of government attempts to impose changes on the other, the citizen is, civically speaking, conflicted. The ongoing debate over Quebec's place in Canada has created in Quebecers, collectively and individually, a divided self, to use the psychological epithet of R.D. Laing. To stay within the psychological idiom, there are times when Quebecers demonstrate a split personality, as they did during the Trudeau-lévesque years, voting for a strong federalist government in Ottawa and a separatist one in Quebec at the same time.

What in political language is called dual legitimacy, though looking more often like duelling legitimacies.

The unilateralism of Bill 96 forces Quebecers to choose their nation. Having voted No to separation in two referendums, we had thought they already had.