Distinct and Equal ... Including Quebec

Study suggests giving Quebec its "distinct society" clause, but with a proviso ...

Release Date: 15 October 1997

VANCOUVER, BC>>>  The concept of two founding peoples in Canada is of dubious historical validity, has even less relevance today, and is not a proper basis on which to renew our country's constitution, according to Mel Smith, Q.C., former constitutional advisor to four successive B.C. governments.

The Implications of Recognizing Quebec as a Distinct Society in the Constitution, a paper released today by the Fraser Institute, examines the essential issue of Canadian federalism: how to square the circle of the distinctiveness of Quebec on the one hand with the concept of equality of the provinces on the other. Smith criticizes the recent premiers' meeting in Calgary for attempting to "paper over" this difficult question by avoiding the dreaded "d" word (distinct society) in favour of the word "unique."

Challenging the proposition that the constitution be amended to recognize Quebec as a "distinct society", Smith worries that the possible legal interpretation of the words themselves is being accorded too little attention and debate. "It's not just the provision of a distinct society in the constitution that is being advocated, but that there be an express provision in that clause requiring the courts to interpret the Canadian constitution in the light of the distinct society," writes Smith.

Smith warns that if the constitution does include a "distinct society" clause -- which he calls an "outmoded, deceitful, discredited, twice-rejected concept that should be thrown on the scrap heap of constitutional conferences past" -- an aggressive Quebec government will eventually use it to assert areas of jurisdiction which it does not presently have, a situation he describes as "incremental separatism."

"At the end of the day, we may find that the separatists will have achieved within Canada what they hope to achieve by separating from Canada. We ought not to give Quebec a blank cheque in the form of the distinct society clause, not knowing what powers it entails."

Instead, Smith advances two ideas which might meet the legitimate constitutional aspirations of Quebec while adhering to the principle of the equality of the provinces: allow significant decentralization of legislative power to the provinces; or grant Quebec its distinct society clause with the proviso that any fresh assertions of jurisdiction that Quebec would achieve through its use would be available to all the other provinces as well.

Established in 1974, The Fraser Institute is an independent public policy organization based in Vancouver.

For further information contact:

Suzanne Walters, Director of Communications,
The Fraser Institute, (604) 714-4582,
Email suzannew@fraserinstitute.ca

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