Canada's Linguistic Duality and Quebec's "Distinct Society"

1. Of the five proposals for constitutional change put forward by Quebec, perhaps the most central was the recognition of Quebec as constituting a distinct society within Canada. The response in the Accord to this proposal is to make two principles of interpretation applicable to the whole of the Constitution of Canada, namely, that the Constitution is to be interpreted in a manner consistent with linguistic duality across the country ("a fundamental characteristic of Canada") and with the recognition of "a distinct society" in Quebec. These principles are more than merely preamble. They must in future be taken into account by the courts, along with other rules of interpretation, in arriving at a balanced understanding of the whole of our Constitution, including the Charter.

2. The precise text of the proposed amendment is as follows:

"2.1(1) The Constitution of Canada shall interpreted in a manner consistent with

(2) The role of the Parliament of Canada and the provincial legislatures to preserve the fundamental characteristic of Canada referred to in paragraph (l)(a) is affirmed.

(3) The role of the legislature and Government of Quebec to preserve and promote the distinct identity of Quebec referred to in paragraph (1)(b) is affirmed.

(4) Nothing in this section derogates from the powers, rights or privileges of Parliament or the Government of Canada, or of the legislatures or governments of the provinces, including any powers, rights or privileges relating to language."

3. This text is to be read in conjunction with section 16 of the Accord, which specifies:

Nothing in section 2 of the Constitution Act, 1867 affects section 25 or 27 of the Canadian Charter of Rights and Freedoms, section 35 of the Constitution Act,1982 or class 24 of section 91 of the Constitution Act,1867.

4. The Joint Committee received numerous written submissions and heard the testimony of a great many witnesses on the subject of proposed section 2 of the Constitution Act, 1867 and of the meaning and implications of section 16 of the Accord .

Rules of Interpretation

5. On at least one point the constitutional experts were virtually unanimous. The "linguistic duality" and "distinct society" clauses do not bring into existence new legislative or executive powers. They do not increase the "rights or privileges" of the provincial governments at the expense of the government of Canada or vice versa. Rules of interpretation do not create substantive new rights. They do not in themselves override existing substantive rights. They become two additional constitutional values that, when balanced with other values already represented in the Constitution, will be used to arrive at a fair and proper interpretation in the decision of a particular case.

6. Many witnesses referred to section 2 simply as "the distinct society clause". This misses the point. What is described as "a fundamental characteristic of Canada" is the existence of linguistic minorities, i.e., the existence of French-speaking Canadians, centred in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec. It is in light of this "fundamental characteristic" that the courts are also asked to keep in mind that Quebec is "a distinct society". The amendment does not describe the "distinct society" itself as a fundamental characteristic.

7. The Quebec government is to preserve the fundamental characteristic of Canada (the linguistic minority) within its borders while at the same time it is to "preserve and promote" the distinct identity of Quebec. The "five conditions" announced by the Quebec government did not ask for explicit recognition in the Constitution of linguistic minorities in Quebec or elsewhere; nor did Quebec ask for a role to play in their preservation.

8. Of equal significance is the position of the other provincial premiers. They came to Meech Lake to deal with Quebec's distinct society. They went home with a commitment to entrench in the Constitution an obligation to preserve the French speaking' minorities in their own provinces. They accepted explicit recognition of the presence of these minorities as a "fundamental characteristic" of Canada. It is hard to know who must have been more surprised the morning after the night before--the Premier of Quebec or some of his counterparts in the other provinces.

9. While minorities within Canada are identified in terms of language, the "distinct identity" of Quebec is not limited to language. Ultimately, the courts will want to hear evidence about Quebec's "distinct society". What is the "distinct identity" that Quebec is to preserve and promote? Undoubtedly, it includes the language and culture of French-speaking Canadians and that of the English-speaking minority, but such a statement does not do justice to the variety and richness of the many other cultures and peoples within Quebec's borders, including aboriginal peoples. The expression "distinct identity", in its ordinary meaning, is broad enough to include anything and everything that makes Quebec recognizably different, both in its many constituent parts and in the relationship they bear to one another. Maître Yves Fortier explained his view as follows:

Quebec is different from its other partners in the Canadian federation. In this regard, clause 2 enshrines a fact that was already obvious to both politicians and the courts. Does clause 2 distort reality? I do not think so, because Quebec society within Canada is not defined solely by the characteristics of the francophone majority, and clause 2 states this specifically. Quebec's distinct society is composed of English speaking Canadians, French-speaking Canadians, native people and people from ethnic groups.
(Fortier, 12:82)

10. The Joint Committee explored with each witness the potential difficulties that the "linguistic duality" and "distinct society" rules of interpretation might create for other important aspects of federalism. The consensus of opinion seemed to be that while these rules were significant in their own sphere of operation, they would not override other equally important constitutional values. Professor Richard Simeon of Queen's University said they would not upset the balance of the federation:

Indeed, of all of the ways we might have chosen to represent Quebec's distinctiveness in our federal institutions, the means chosen in the accord seem to me to amount the least imaginable challenge to the other important values of Canadian federalism.
(Simeon, 5:71)

An Accurate Reflection of Canada?

11. The first and major issue raised by the amendment is whether its vision of Canada is accurate and appropriate.

12. We were told an anecdote about Sir Wilfrid Laurier who, speaking in 1900 in Nova Scotia, recalled a visit he had made to a great Cathedral in England at the time of Queen Victoria's Jubilee:

A marvel of gothic architecture which the hand of genius, guided by an unerring faith, had made a harmonious whole in which granite, marble and oak were blended ... This cathedral is the image of the nation I hope to see Canada become. As long as I live, as long as I have the power to labour in the service of my country, I shall repel the idea of changing the nature of the different elements. I want the marble to remain marble; I want the granite to remain granite; I want the oak to remain oak ... I want to take all these elements and build a nation that will be foremost among the great powers of the world.

13. Former Prime Minister Trudeau, in his evidence to the Joint Committee, denounced the 'distinct society" clause as a threat to a unified federal authority:

... Read the speeches. Read Mr. Rémillard. It is just ridden with this stuff: now we will be able to occupy the grey areas; now we will be able, even in foreign affairs, even in the area of banking, even the area of telecommunications, to get and exercise more powers.
(Trudeau: 14:136)

14. Mr. Trudeau's concerns were not shared by Robert Stanfield, former Leader of the Opposition, who spoke in favour of the proposal:

I cannot see anything in the accord that puts us on a slippery slope toward two nations. True, the accord, if it is fully implemented, becomes part of the Constitution of this country. It is true it recognizes something special about Québec -- not for the first time, by the way -- and a role for Quebec in connection with that identity. But it is a very limited thing. There are no specific powers given to Quebec in that connection. I find it very difficult to see how that puts the country on any kind of a slope, and I do not have any difficulty living with that degree of asymmetry in the Constitution.

On the other hand, I think we have been on a very slippery slope following 1982. That is the slippery slope. If the accord that has been negotiated is rejected, I think we are on a very slippery slope indeed. To me, that is the slippery slope we should be watching.
(Stanfield, 5:1 12)

15. Sir Wilfred Laurier's vision that the granite is to remain granite and the oak is to remain oak is, of course, older than confederation itself. It distinguishes the Canadian approach from the "melting pot" approach adopted elsewhere. It is an accurate reflection of Canada. The question raised by critics is how, if at all, this social reality should be incorporated in the constitution.

Analysis of the Proposal

16. After reflecting on the testimony we have heard from 131 individuals and groups and the 301 written submissions that we have received, it seems to us that the major issues on this aspect of the 1987 Constitutional Accord can usefully be organized around a number of key questions as follows:

Part I: The legal meaning of "linguistic duality" and the "distinct society

Part II: The legal status of the "distinct society"

Part III. Legal effect of "linguistic duality"

17. While these questions are certainly not exhaustive, they do serve to organize the issues into a manageable order for the detailed discussion that follows.

18. The whole issue of the impact of these new rules of interpretation on Charter rights is itself a major area of discussion and this is dealt with separately in Chapter 6.

Part I: The legal meaning of the linguistic duality and the distinct society

19. Some witnesses who came before the Committee were troubled by the prospect of inserting into the Constitution additional concepts whose meaning and implications are not spelled out in the text. This criticism was made, among others, by Professor Ramsay Cook of York University:

... it does seem to me that the phrase "a distinct society" was put in the Constitution because it meant something, and all I have asked in my brief is to be told what it means. If it does not mean anything, then it should not be there; if it does mean something, then I would be glad to know what it does mean.
(Cook, 5:43)

The lack of definition creates uncertainty, it was argued, and uncertainty in a constitutional document is a bad thing.

Question 1: Are the concepts of linguistic duality and the distinct society constitutional innovations whose implications have not yet been adequately assessed?

20. The question of definition evoked much discussion about law, history and sociology in the course of the Committee's hearings.

21. In terms of sociology, we were told that the linguistic minorities across Canada and Quebec's "distinct society" are well studied phenomena. Former Prime Minister Trudeau acknowledged that sociologically Quebec is a distinct society and former Senator Eugene Forsey, who questioned the 1987 Constitutional Accord on many grounds, had no trouble in recognizing a "distinct society" when he saw one:

That Quebec is, sociologically distinct, again, who can question? It is, for one thing, the only province with a French-speaking majority. It is, for another, the only province with a French-type civil law, constitutionally guaranteed. Many features of its community life are very different from what we find in any of the other provinces.
(Forsey, submission, p.6)

22. As a matter of law, we are told that arguments based on Canada's "linguistic duality" and Quebec's "distinct society" have already been addressed to the Supreme Court of Canada from time to time. In its decision in the Attorney General of Quebec and the Attorney General of Canada (1982), 140 DLR (3d) 385 (the "Quebec Veto" case), the Supreme Court of Canada noted the following argument presented by counsel on behalf of the Attorney General of Quebec (at p. 401):

What was meant by the principle of duality was what counsel called its "Quebec" aspect which he defined more precisely in his factum at pp. 8 and 16 (translation):

"In the context of this reference, the word "duality" covers all the circumstances that have contributed to making Quebec a distinct society, since the foundation of Canada and long before, and the range of guarantees that were made to Quebec in 1867, as a province which the Task Force on Canadian Unity has described as "the stronghold of the French-Canadian people" and the "living heart of the French presence in North America". These circumstances and these guarantees extend far beyond matters of language and culture alone: the protection of the British North America Act was extended to all aspects of Quebec society -- language, certainly, but also the society's values, its law, religion, education, territory, natural resources, government and the sovereignty of its legislative assembly over everything which was at the time of a "local" nature".
(Emphasis added)

23. While rejecting the relevance of Quebec's reliance on "the principle of duality" in that case, the Supreme Court has on other occasions taken note of related matters such as "the basic compact of Confederation" (Reference Re Adoption Act, [1938] S.C.R. 398 per Duff C.J.C., at p. 402), the "political compromise" in respect of the founding languages (La Société des Acadiens v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 at 578) and the "compromise that is clearly expressed" in relation to denominational schools (Reference re Ontario Separate School Funding, Supreme Court of Canada, judgement released June 25, 1987, per Wilson J. at p.48).

24. As a matter of history, linguistic duality (including the accommodation of linguistic minorities) and the "distinct society" of Quebec are far older than Canada itself. The evidence before the Joint Committee suggested that their legal roots reach b back at least to April 11, 1713, when most of Acadia became a British colony. By Article XIV of the Treaty of Utrecht, those Acadians who chose to remain were to enjoy the free exercise of the Roman Catholic religion. Coexistence of the two religious communities was officially recognized, although the change of sovereignty made English the language of government.

25. In 1763, by the Treaty of Paris, France ceded the whole of Canada to Great Britain. Article IV recognized the liberty of the Roman Catholic religion, but it said nothing regarding the private law or the use of language. After the Conquest, the English pressed for assimilation, while the French petitioned for the maintenance of French private law, access to French-speaking lawyers and a bilingual system of justice. The British bowed to the reality of the linguistic and cultural "duality". Reports of the Attorney General and Solicitor General of the day emphasized the difficulties inherent in failing to give the French and English languages an equal status and the need to recognize the distinct nature of French-Canadian society (Report of Attorney and Solicitor General Regarding Civil Governments of Quebec, 1766). On July 1, 1766, Governor Irving issued an Ordinance of Judicature which provided for juries composed of persons speaking the same language as the parties involved in the litigation, or for mixed juries if the litigants spoke different languages. By an Ordinance in 1771, the French seigneurial system of land tenure was officially recognized and new land grants were thereafter to be made according to French law.

26. It thus appears that not only has the accommodation of linguistic minorities within what is now Canada and the fact of French-speaking people "concentrated" within a defined geographic base been recognized almost since the arrival of the Europeans in North America, but elements of the "distinct identity" of this community--including religion, language and laws--have been reflected in our legal arrangements from earliest times.

27. Professor Gérald Beaudoin, referred in his evidence to The Quebec Act of 1774, which he said responded to French Canada's demands for the preservation of its laws and customs. While the criminal law of England was preserved by Article XI, Article VIII reestablished French law in relation to property and civil rights. In addition, the anti-papist laws of England were curtailed in their application to Quebec. Article V declared that Roman Catholics were to enjoy freedom of religion, and the clergy of the Catholic Church was to hold, receive and enjoy its accustomed dues and rights. Furthermore, religious impediments to holding public office were removed.

28. The Constitutional Act, 1791 divided Quebec into two parts corresponding to the linguistic and cultural division of its inhabitants. The Act said nothing about the constitutional status of the French and English languages, but certain of its provisions recognized the "linguistic duality". For instance, section 24 provided that electors could be sworn in either French or English.

29. In 1840 the British government decided to withdraw recognition of some minority rights and to play down Quebec's "distinct society". The Act of Union brought together Upper Canada and Lower Canada into the "united" Province of Canada, with unexpected results. Mr. J.W. Pickersgill described this aspect of our history to the Committee as follows:

... they were attempting to follow Lord Durham's proposal to submerge the French and turn them into English colonials. That was the purpose. The French language no longer had any official status in that act. They were thwarted in that, however, and I think this is one of the proudest things in Canadian history. They were thwarted in that effort by the Parliament of the Province of Canada, with an anglophone majority that insisted on the restoration of the French language as an official language. I say that was one of the great moments in Canadian history.

The distinct society was of course restored completely in the act of 1867, but French Canadians, I believe, have never forgotten what was attempted in 1840, and there has always been a worry that the majority might try to do it again. That is why they are so insistent on having an affirmation in the Constitution itself of the distinct character of that society.

There was a kind of repetition of 1840 in 1982. I quote Mr. Stanfield's words: the Charter was shoved down the throats of the legislators and the Government of Quebec. It took away provincial rights, as I have already said, without provincial consent.
(Pickersgill, 10:125)

30. The point made by Mr. Pickersgill is, we think, an important one. When efforts were made by the British in 1840 to refashion Canada according to preconceived notions of what the country should (in their view) look like, the result was failure. Many witnesses suggested that our Constitution should be an uplifting text that inspires us to do better, but at the same time our history suggests that it should not ignore the realities of the society we live in. When a constitution wanders too far from the society it is intended to regulate it is the constitution, not the society, that ultimately has to yield.

31. The Constitution Acts of 1867, 1870 and 1982 contain extensive provisions dealing with language rights, religious rights and recognition of the civil law system of Quebec and the common law system elsewhere in Canada. Section 94 of the Constitution Act 1867, which contemplated the possibility of uniform federal legislation for property and civil rights in some of the provinces, made no reference to Quebec in recognition of its very different civil law system.

32. Enough has been said to indicate that our laws already reflect, sometimes implicitly and sometimes explicitly, "the existence of French-speaking Canadians centered in Quebec but also present elsewhere in Canada and English-speaking Canadians concentrated outside Quebec but also present in Quebec", as well as the fact that Quebec society presents certain distinctive features not found to the same extent, if at all. elsewhere in Canada.

33. Witnesses were asked whether this everyday reality had so far escaped the attention of the courts. Professor William R. Lederman assured the Joint Committee that it had not:

I think it has been true since 1867 that the courts have known that the Quebec society is, in certain important ways, a distinct society. That has always weighed with them in settling constitutional issues that touched closely on Quebec. This has been implicit

I believe it is worth making that which has been implicit, explicit, in general terms, because it is, as we say in our brief, one of the fundamental realities of the Canadian free and democratic society.
(Lederman, 7:28)

34. In this connection we were referred to the decision of former Chief Justice Jules Deschênes of the Superior Court of Quebec in the Quebec Association of Protestant School Boards et al v the Attorney General of Quebec et al (No 2) (1982) 140 DLR (3d) 33, [1982] CS 673. In deciding whether some of the education provisions in Quebec's language law, Bill 101, were demonstrably justified within the meaning of section 1 of the Canadian Charter of Rights and Freedoms, as a reasonable limit on the minority language education rights guaranteed in section 23 of the Charter, Chief Justice Deschênes considered evidence on contemporary political thought in Quebec, on demographic trends and projections with regard to Quebec's linguistic groups, on the relationship of language and culture in Quebec, on the economics of school funding in Quebec, and on the historical contrast between Quebec's approach to linguistic education and that of the other provinces in Canada. In his decision, Chief Justice Deschênes acknowledged the legimitacy of the government of Quebec's aim to protect the distinct features of Quebec society that were revealed by this evidence, but held that the means adopted in Bill 101 overshot that purpose. On appeal, the Supreme Court of Canada affirmed the correctness of the result arrived at by Chief Justice Deschênes but on grounds that did not involve a consideration of his approach to "distinct society" evidence. (The Supreme Court's decision is reported at [1984] 2 SCR 66.).

35. Some witnesses took the position that appeals to history cannot in 1987 justify associating the legal rights of each of the founding cultures with a particular geographic base within Canada. This, they feared, could eventually lead to acceptance of the idea that Canadians belong only in their "assigned" geographic area. This could be the beginning of "two nations". All of Canada is the homeland, it was pointed out, and constitutional recognition of regional distinctiveness is neither relevant nor desirable.

36. In the Committee's view, however, the limited recognition given by the proposals to the "distinct society", and the assignment of a role to the Quebec government to "promote" its distinct identity, are appropriate values to be reflected explicitly rather than implicitly in the Constitution. Insofar as the "linguistic duality" and "distinct society" clauses are statements of fact they are neither revolutionary nor particularly innovative. They reflect Canada as it is. Insofar as criticism has been directed not so much at the concepts as at the particular way in which the amendment is formulated, these aspects of the 1987 Accord will be discussed in greater detail below.

Question 2: Why is the "distinct society" of Quebec singled out for special recognition while other distinct societies in Canada, such as that of the aboriginal peoples, are not?

37. Many of the submissions before us were concerned with elements of Canada's identity that were seen to have been excluded from the definition in section 2(1)(a). Witnesses were quick to suggest other entities within Canada that could also be described as "distinct societies".

38. Former Senator Eugene Forsey put the point in his submission:

But it can be argued that other provinces also are sociologically distinct. My own native province of Newfoundland, for example, has its own varieties of the English language... its own special system of education, constitutionally guaranteed. New Brunswick also is sociologically distinct: the only province with a French-speaking minority amounting to nearly a third of the total population, and a French-speaking community which is by no means just a carbon copy of Quebec's.
(Forsey submission, pp.67)

39. The viewpoint of aboriginal peoples was expressed by Mr. Zebedee Nungak, on behalf of the Inuit Committee on National Issues, as follows:

We have much concern with the distinct society clause, mainly because it abjectly ignores that people or groups other than Quebec are not distinct; it implies that Quebec is the only distinct thing that deserves such special recognition. We know that to be a basic fallacy, because we are distinct just as much as Quebec is: we are aboriginally distinct.

With the distinct society, our concern is we may be "outdistincted" by a distinct Quebec, especially if we have the circumstances of living within the boundaries of what is called Quebec now.
(Nungak, 3:24)

40. As we have already pointed out, to the extent that aboriginal peoples reside in Quebec they are as much part of the "distinct society" as anyone else, and as much entitled to both the protection and affirmative support of the "distinct society" rule of interpretation .

41. With respect to other "distinct societies" outside Quebec, section 2(1)(a) does not pretend to be a compendious definition of what constitutes the identity of Canada. As for the "linguistic duality" clause, it is not put forward as "the fundamental characteristic of Canada" or as "the only characteristic of Canada", but simply as a fundamental characteristic.

42. The members of the Joint Committee have no doubt that other communities within Canada might also be defined as "distinct societies" and the fact that they are not referred to in section 2 does not mean that these other characteristics or other cultural groups have been rejected or given second-class status. They do not appear in these sections because these sections are addressed to a much more narrow and much more specific issue, namely, the appropriate constitutional response to the demand of the Quebec government in the Quebec Round that Quebec be recognized as "a distinct society".

Question 3: Have the framers of the amendment given appropriate guidance to the courts about the intended meaning of the "linguistic duality" and "distinct society" clauses, or will the amendment thrust the judges into a political role that elected politicians ought properly to discharge?

43. Professor Ramsay Cook put this particular objection to the drafting of the Accord in this way:

It seems to me that by failing to define clearly the terms "distinct society" and "distinct identity", the proposed Constitutional Accord, instead of resolving the sensitive issue of Quebec's place in the Canadian federal system, only opens that question to further claims and counterclaims; claims about the meaning of terms that, as they stand, are at best calculated ambiguities and at worst a long, irreversible step into a quagmire. Quebeckers and all other Canadians need a precise definition of that province's place in our Constitution before any sensible judgment of this Constitutional Accord can be made.
(Cook, 5:36)

44. Other witnesses suggested that the phrase "distinct society" was likely not defined further because no consensus could be reached by the participants at Meech Lake, who therefore simply thrust the whole matter of definition upon the courts. To these critics, this represents an abdication of political responsibility which ought properly to have been exercised by the drafters of the Accord. In their view, this "abdication" imposes upon the court a political rather than a judicial role. A variant to this argument characterizes the decision that the court is called upon to make in interpreting the meaning of "distinct society" as a sociological matter that is equally inappropriate for a court of law.

45. The real question is whether it is either necessary or desirable to lay down more specific guidance to the courts in a constitutional document. The technique adopted in the Constitution Act, 1982 was to use broad language and few definitions in its formulation of Charter rights and freedoms. Even such key ideas as "reasonable limits" and "demonstrably justified" and "a free and democratic society" are left undefined. It was believed by the framers of the Constitution Act, 1982 that the country would in the long term be better served by allowing the courts to work out the meaning of general concepts, based on proper evidence, on a case by case basis, when issues arise in the context of specific fact situations.

46. Senator Lowell Murray advised the Joint Committee that it is the government's view that to spell out the particulars of the "distinct society" in the text of the Constitution would risk obsolescence and rigidity:

We decided not to define Quebec's distinct society more clearly. If, in the 1930's, anyone had tried to define Quebec's specificity, it might have been said that Quebec was Catholic and French-speaking. I do not think today's politicians would use these kinds of terms to define Quebec's specificity.

We all know that we can quickly draw up a list of those characteristics that describe Quebec. There is the obvious fact that Quebec is the only province to have a French speaking majority and an English-speaking minority. There is also the fact that it uses the civil code and that it evolved under a different Crown for 150 years before the 1763 Royal Proclamation. There are also the cultural and social institutions. As you can see, it would be easy to draw up a list, but that list might unduly limit the concept itself. A constitution is a living and evolving instrument.

We decided to allow this concept, as well as other concepts contained in the Constitution, to evolve through time.
(Murray, 2:43)

47. A number of potential definitions were suggested. La Fédération des femmes du Québec recommended adoption of the definition used by Mr. Claude Ryan in the Beige Paper:

Our laws, our legal system, our municipal and provincial institutions, our volunteer organizations, our media, our arts, our literature, our education system, our network of social and health care services, our religious institutions, our savings and loans institutions, as well as our language and our culture.
(Submission, p.4)

48. Those who favour flexibility point out that it is impossible for the framers of any constitutional amendment to anticipate every circumstance in which a concept may have some application. Judges have the advantage of seeing everything with hindsight. The particular aspect of the "distinct society" under consideration by the court will at that time have to be established in evidence.

49. The Supreme Court of Canada has itself argued for flexibility and a "living tree" approach to the Constitution. Chief Justice Dickson made the following observations in an early Charter case, Hunter v. Southam Inc., [1984] 2 SCR 145, at p. 155:

A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like a last will and testament lest it become one".
(Emphasis added)

50. The Joint Committee does not wish today's "definition" to become tomorrow's "last will and testament" for Canada's linguistic minorities and Quebec's distinct society. The concept of distinctness is clear enough, as is the intention of section 2 to ensure that it is preserved and encouraged to flourish. The content of this distinctness, even if it were ascertainable as of the date of a constitutional amendment, ought not to be frozen or "fixed in amber" for all time.

51. Nor do members of the Joint Committee believe it to be an abdication of political responsibility to call upon the courts to ascertain from time to time the evolving meaning of these rules of interpretation. The categories of evidence to be considered in such a decision and the processes used to come to a conclusion, including the consideration of sociological or political factors, are precisely those to which the court resorts when it makes determinations with regard to the Canadian Charter of Rights and Freedoms, especially on the subject of whether a particular enactment which appears to infringe Charter rights can nevertheless be saved as "demonstrably justifiable in a free and democratic society".

52. If Canadians are willing to allow the courts to determine the concept of a "free and democratic society" in relation to evolving circumstances, it is not a "quantum leap" to add linguistic duality and the "distinct society" to the court's docket of responsibilities. The quantum leap was made in 1982. The Supreme Court of Canada was at that time handed a major policy role as a shaper of Canadian society. Those who framed the Constitution Act, 1982 decided that some important judgements about social and cultural values would better be solved institutionally (i.e. by entrusting them to the courts) rather than by trying to articulate extensively a hierarchy of values in the text of the Constitution itself. If the 1987 Accord requires a measure of political judgment from the courts so be it. It is a role that was thrust upon the judiciary in 1982 with the advent of the Charter.

Part II: The Legal Status of the Distinct Society

53. Many of the points under this heading have already been mentioned in earlier paragraphs of this report but it is convenient at this stage to bring together some of the main themes before embarking on a more detailed discussion.

Question 1: Assuming (as all witnesses did) that Quebec is in fact a "distinct society" within Canada, should constitutional recognition of this fact confer upon Quebec's government and legislature a special legal role for the preservation and promotion of its "distinct society"?

54. Some witnesses argued that the recognition of Quebec as a "distinct society" means that Canada is being redefined as a country composed not of individuals nor even of 10 provinces plus the northern territories, but of two nations, a concept which must, the argument continues, lead to the steady erosion of the unifying effect of the federal government and its institutions and ultimately to a bifurcation of Canada.

55. A less alarmist version of this argument asserts the possibility that recognizing the respective roles of Canada and the provincial legislatures, including Quebec, to preserve a "fundamental characteristic" of Canada, namely linguistic duality, and the role of the government and legislature of Quebec to preserve and promote the distinct society, may shift the constitutional balance of Canada either in terms of conferring new powers on legislatures, especially that of Quebec, or in terms of justifying encroachments on individual rights in ways that were hitherto prohibited by the Charter.

56. An interesting variation of this view was put forward to the Joint Committee by Dean John Whyte of Queen's Law School, who foresees the possibility that the 1987 Constitutional Accord will hinder rather than promote bilingualism in Canada:

I am worried about the other provinces that have weak bilingualist features. The sociological feature they have which is now expressed and identified in the Constitution, is that they are essentially English provinces.

So long as you have a government which promotes bilingualism and wants bilingualism in its education policy and in its governmental administration policy and its justice policy, it will be there. I am not suggesting that governmental power is sapped. What I am suggesting is that the language of Meech Lake and the language of section 2 the political obligation to promote certain things, gives a strong political message, a strong political support, for those who want to say that the Constitution says we are a mostly English-speaking province, and that is your role as legislators -- to keep it that way.
(Whyte, 10:74)

Rules of Interpretation

57. Some of the submissions that we heard appeared to lose track of an essential feature of the proposed amendment--it is nothing more (and nothing less) than a rule of interpretation. We were told by Maître Robert Décary of the Quebec Bar that it can of course be expected to have a meaningful application to at least two areas of the Constitution, the interpretation of the distribution of powers and the interpretation of the Canadian Charter of Rights and Freedoms:

It must be borne in mind that this concept is a rule of interpretation, at the outset. It is a rule of interpretation that will have to be applied to the division of powers within the federal state of Canada. Under it, certain powers could be assigned to the provinces, by virtue of the fact that Quebec, as a province, is a distinct society. The division of powers could, in case of doubt, be decided by the Supreme Court. Because it is possible that this dimension of power relates to the concept of a distinct society in Quebec, the Court could decide that a power lies within provincial jurisdiction. Thus, this power would fall within the purview of all the provinces, and not only within that of Quebec.
(Décary, 4:66)

Mr. Hamelin: When the Supreme Court interprets certain provisions of the Charter, it will, I imagine, take into account the concept of a distinct society. Do you think so?

Mr. Décary: Yes, yes it will, because the Charter is part of the Constitution and because it is an interpretive clause with the Constitution, it also affects the Charter.
(Décary, 4:75)

58. Professor Gérald Beaudoin, with whose testimony a number of other constitutional experts concurred, described the legal effect of these clauses as follows:

In my opinion, as in the opinion of a good number of lawyers, the recognition of a distinct society ... is an explicit and important interpretative clause but it does not change the distribution of powers or the Canadian Charter of Rights and Freedoms. But it can, in certain cases, in particular under section I of the Charter and in grey areas concerning the distribution of powers, give more weight to certain arguments.

... it is an express rule of interpretation. It is important. It is fundamental. It may influence the interpretation of the courts under section I of the Charter or the interpretation of the division of powers, but it is not more than that and it is not less than that. It is a rule of interpretation.
(Beaudoin, 2:65)

59. We should also keep in mind the observation of Dean John Whyte on this point:

Of course, you only get to construe terms of a Constitution when they are ambiguous. On the other hand, they are always ambiguous. So you get to construe, according to this social norm, in almost every case.
(Whyte, 10:61)

60. As a matter of law, the "linguistic duality" and "distinct society" clauses neither grant new powers nor derogate from existing powers. They are merely aids to interpretation of what is already there. Subsections (2) and (3) of the 1987 Accord do not speak of granting powers or conferring jurisdiction. The English text speaks of '"affirming" certain roles for a government and all the legislatures. The French text merely presents these roles as an existing fact. The clear implication is that the roles in question, and the exercise of powers necessary to fulfil these roles, were already within the jurisdiction of the legislature or the government in question.

61. To eliminate any uncertainty on this point, section 2(4) was added on the road between Meech Lake and the Langevin Block to declare expressly that nothing in section 2 "derogates from the powers, rights or privileges" otherwise enjoyed by the legislatures or governments in question.

62. In these circumstances, nevertheless, is there a serious risk that the "linguistic duality/distinct society" clause might cause some shift in the constitutional distribution of powers or erode the protection of Charter rights and freedoms?

Distribution of powers

63. It has been held repeatedly by the courts that the Constitution Act, 1867 exhaustively divides the entirety of legislative competence between Canada and the provinces. It might therefore appear difficult to see how the "linguistic duality/distinct society" clauses could affect the division of powers without derogating from the powers, rights or privileges of one level of government in favour of the other.

64. Nevertheless, the Joint Committee was advised that the definition of the scope of a legislative power is an ongoing process of allocating subject matters to heads of jurisdiction. Take, for example, the regulation of markets for financial securities. Would such a law be classified as an aspect of the federal "trade and commerce" power, as some say, or of "property and civil rights" within exclusive provincial jurisdiction, as others contend? And what about a new law purporting to regulate the content of radio or television broadcasting? As new laws are made and challenged before the courts this process of classification of laws into federal or provincial jurisdiction continues. The court docket is limited only by the imagination and productivity of Canada's legislators and lawyers. The ongoing process of the constitutional "classification" of laws by the courts is one of the important areas where the interpretative provisions of the "linguistic duality" and "distinct society" clauses will come into play. Indeed, if this were not so, then the "linguistic duality" and "distinct society" interpretative provision would be meaningless, a result that can hardly have been intended by its framers.

Peace, Order and Good Government

65. In addition to the specific areas of legislative competence assigned by the Constitution Act, 1867 to Parliament or the provincial legislatures, there is also a generalized grant in section 91 which assigns to the Parliament of Canada the power to make laws for "Peace, Order and Good Government". This power has been interpreted by the courts as a "residual" power so that when a particular matter cannot be fitted into any of the specific heads of power enumerated in the Constitution Act, 1867, it falls under the authority of Parliament. Examples of federal jurisdiction based on its residual "Peace, Order and Good Government" power are aeronautics and broadcasting, both of which result from technology that was not anticipated in 1867.

66. With respect to the residual federal power, the federal government representatives had this to say:

Senator Murray: "... the powers that accrue to the federal Parliament by virtue of the peace, order, and good government clause are every bit as explicit and as safe as any of the other heads of powers that are enumerated in the old Constitution Act of 1867.

I will ask the Deputy Minister of Justice whether he would like to add something in a more complete and professional way to this statement.

Mr. Iacobucci: There is nothing I could usefully add. I believe it is the analysis we have advised the government on."

67. The net result of the advice received by the Joint Committee is that federal powers are "safe" but that they continue to be subject to judicial interpretation and evaluation. The possibility, therefore, exists that the affirmation in section 2(3) of the role of the government and legislature of Quebec "to protect and promote" Quebec's distinct society could be used by the courts to interpret the distribution of powers in a way not precisely the same as these powers would have been interpreted if the "distinct society" clause were not part of the constitutional mix. In the same way, the "linguistic duality" rule of interpretation would also be of use to the courts to interpret "grey areas" in appropriate circumstances. But that is the full extent of the changes in respect of the distribution of legislative competence brought about by this aspect of the 1987 Accord.

Executive Authority

68. On the level of executive authority (as distinguished from legislative jurisdiction), there may also be some redefinition of constitutional power. Maître Robert Décary, foresees an enlarged role for Quebec on the international stage in matters of direct concern to the "distinct society". As a general rule, executive authority in Canada is divided between the federal and provincial governments along the demarcation lines established by the Constitution and the courts for legislative competence. Accordingly, the above discussion about the possible reinterpretation of the distribution of legislative powers generally applies to executive power as well.

69. The Committee acknowledges that the precise impact of the "distinct society" clause cannot be authoritatively determined in advance, but nor was it possible to foresee the future when, in 1867, the key words "Peace, Order and Good Government" were written into the Constitution; nor in 1982 when the words "free and democratic society" were written into the Charter. That being said, however, the weight of constitutional authority, nevertheless, strongly suggests to the Committee that the impact of the "linguistic duality/distinct society" clause will be felt at the margins of government authority. There is simply no basis to predict a "massive shift" of power from the federal government to the provincial governments, including Quebec.

Question 3: Will recognition of Quebec's distinct society undermine the equality of the provinces?

70. The preamble to the Resolution moving adoption of the Constitutional Amendment, 1987 recites that "the amendment proposed in the schedule hereto also recognizes the principle of the equality of all the provinces". At Meech Lake, Quebec's original 5 conditions were negotiated, where possible, into amendments of equal application to all provincial governments. A necessary exception to this general approach was the "distinct society" clause and the question is whether this exception unduly undermines the general principle of equality of the provinces.

71. Some witnesses were concerned about an "asymmetrical Constitution", i.e. a constitutional arrangement not perfectly balanced and equal in all its constituent parts.

72. The express identification of a special "role" for a particular provincial government is a constitutional innovation, although in broad terms each provincial government is given a different "role" to play depending on its location and circumstances. British Columbia plays a role in the protection and promotion of the forest industry. Prince Edward Island does not. This is not because Prince Edward Island lacks the same arsenal of legislative and executive power as British Columbia, but because history and geography have not blessed it with major forestry resources.

73. In the same way, it was argued by some witnesses, history and geography have created for the government of Quebec a cultural and linguistic community which is unquestionably "distinct". The "role" is thrust on the Quebec government by its history and the special facts of its situation and not by some abstract constitutional doctrine. The rule merely makes explicit a role that is already implicit, in their view. If the Constitution is "asymmetrical" it is because it has to accommodate a country which, to this extent, is asymmetrical.

74. The precise future role of the government of Quebec was questioned by Professor Ramsay Cook:

Does preserving and protecting that distinct society, for example, include a role in international affairs that might be denied to other provinces, as it will include under the new agreement, and indeed to some degree did in the past, a special role in immigration policy? Does it imply manpower or child care policies different from those of other provinces? Could it imply a special role in the making of economic policy?
(Cook, 5:36)

75. Two broad answers emerged to these questions. In the first place, it was pointed out that just as factual realities gave rise to the "distinct society" clause in the first place so other factual realities will constrain its exercise. On the matter of international relations, for example, Mr. Gordon Robertson testified:

A lot will depend on the attitude of future federal governments. If they are determined that Canada is to speak with a single voice and there is to be a single foreign policy for Canada, I think this can be firmly and clearly established ...

A second consideration is that most foreign countries are not at all anxious to promote provincial governments in Canada as spokesmen, or "spokesgovernments", on an independent basis. I would be very skeptical whether a future government of Quebec will find the kind of support abroad, if it seeks that kind of support. I am very dubious if it will try it. I would be most surprised if it did.
(Robertson, 3:81)

76. Secondly, it must be repeated that the "distinct society" clause does not itself confer on Quebec the power to do anything. Quebec's jurisdiction, like those of the other provinces, must be found elsewhere in the constitution. An interpretative clause, by definition, cannot breathe life into a jurisdiction that does not exist. Thus, on a legal level, Quebec will be restrained by the limits of its existing legislative and executive powers (subject to the "grey areas" of interpretation already discussed). This point was emphasized by Professor Peter Leslie of Queen's University:

The distinct society clause does not give the Quebec legislature a free hand to do whatever it thinks necessary to "preserve and promote" the distinctive character of Quebec, because the division of powers is unchanged.

Thus I think it is unwarranted and I think it is alarmist to suggest or to allege that the distinct society clause could confer upon Quebec significant powers that are denied to other provinces. We can expect that by virtue of its linguistic composition and its cultural distinctiveness Quebec will wish to exercise a certain policy role or to take on certain policy responsibilities different from those of other provinces. But it will do so within a constitutional status that is not greatly different from that of the other provinces. That is why I consider that the alleged political imbalance between Quebec and the other provinces is a bogey.
(Leslie, 4:99)

77. The role of preserving Canada's "linguistic duality" is allocated to the legislative branch of government, federally and provincially, whereas the role of preserving and promoting Quebec's "distinct identity" is allocated to both the legislative and executive branches of the Quebec government. Should not the executive branches of governments elsewhere in Canada as well as provincial legislatures take a role in preserving Canada's linguistic duality? We believe so, but we understand that some governments were not prepared to make this commitment at this time.

78. A point of the drafting of the proposed text also attracted some comment. While subsection 2(1)(b) recognizes Quebec's "distinct society", subsection 2(3) speaks of Quebec's role to promote its "distinct identity". Presumably, "identity" embraces those aspects of Quebec society that make it distinctive, but the intended significance of the shift in meaning from "society" to "identity" is an unexplained subtlety.

Question 4: Will recognition of Quebec's "distinct society" balkanize Canada's social and economic development programs?

79. The principal concern expressed by witnesses in this respect was not the "distinct society" clause itself, but the interrelationship of the "distinct society" clause and the new arrangements respecting the federal spending power discussed in Chapter 7. However, a number of submissions did stress on a more general level the importance of the concept of the equality of individual Canadians (as distinguished from the equality of the provinces) and questioned whether this equality could be undermined by the "distinct society" rule of interpretation. These submissions underlined the importance of the federal government and its institutions as a unifying element in Canada, particularly in terms of its ability to legislate uniformly for all Canadians and in the interests of Canada as a whole. Viewed from this perspective, giving special recognition to one element (or even, one would expect, to several elements) of Canada, no matter how "distinct", could create inequalities, undermine the universality and portability of our national social programs and deprive Canadians of a minimum national standard of care.

80. Other witnesses responded that the federal government has no monopoly on the shaping or the safeguarding of the Canadian identity. The provinces are legitimate partners in the Canadian Confederation and the role they play in creating, protecting and defining the Canadian reality in everyday matters is equal to, if not greater than, that of the federal government. Most of our major national social programs were pioneered by the provinces, they pointed out, not the federal government.

81. Witnesses who held this view maintained that to the extent that the "distinct society" clause would assist the Quebec government to promote programs and policies tailored to the particular needs and aspirations of its constituents, it is acting in a manner entirely consistent with the federal structure of the country.

Part III. Legal effect of "linguistic duality"

82. Most of the discussion on the branch of the 1987 Accord was directed to the "distinct society" provision. However, the constitution must also now be interpreted in light of the "linguistic duality" clause, and this was also the subject of comment from a different group of critics.

Question 1: Will recognition of Canada's linguistic duality and Quebec's distinct society disadvantage French-speaking Canadians outside Quebec and the English-speaking minority within Quebec?

(a) French-speaking minorities outside Quebec

83. Concern was expressed by some French-speaking minorities outside Quebec that, while section 2(3) affirms the role of the legislature and government of Quebec to "preserve and promote" the distinct society of Quebec, section 2(2) merely affirms the role of Parliament and of the provincial legislatures to "protect" the linguistic duality defined in subsection 2(1)(a). Their main concern was that the role of "preservation" could be interpreted as looking backward rather than forward and as contemplating a perpetuation of the status quo even if such status quo is unjust.

84. Moreover, the "fundamental characteristic" of French-speaking Canadians outside Quebec is described in terms of their "presence" not their rights. Little is required, it was pointed out, to respect the "presence" of minority language groups and, arguably, considerable encroachment on the linguistic rights of individuals within such groups would be possible without jeopardizing their presence or existence.

85. It was pointed out by L'Association des Francophones Hors Québec that to define "a fundamental characteristic" of Canada only in terms of an individual's linguistic identity misses the key point that language is merely an obvious manifestation of culture, and that not only must the minority language be protected in the Constitution, but it must also be supported by the recognition of collective cultural rights. If the francophone communities outside Quebec wither away, their language will die with them. In this connection, L'Association des Francophones Hors Québec objected to the change in language between Meech Lake and the Langevin Block. The Meech Lake Accord it will be recalled, referred to French-speaking "Canada" and English-speaking "Canada", whereas the Langevin text substituted "Canadians" for "Canada" as follows

the recognition that the existence of French-speaking Canadians, centered in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec,

L'Association des Francophones Hors Québec said that this change, by substituting a reference to individuals for a reference to geography made more difficult the argument that the 1987 Accord preserves collective community rights. However, most witnesses were of the view that the earlier language of the Meech Lake Accord could have been misinterpreted as approval of "two Canadas" and the change in language was generally considered to be an important improvement.

86. The federal government's response to the other criticisms of the "linguistic duality" clause was generally that the provinces had been moved as far as they were collectively prepared to go at this time, and that the effort to expand minority rights in future rounds of constitutional talks and in other ways would continue. Senator Lowell Murray described the federal government's position in this way:

It is a step in the right direction, and an important step. I assure you that the Prime Minister of Canada--and this will come as no surprise to anybody here-tried both at Meech Lake and in the Langevin Block, to move the Premiers somewhat farther than that. It was not possible.

But do not sneeze at the declaration that is there. The Commissioner of Official Languages, dont il n'y a personne de plus exigeant à cet égard, has pointed to the progress this represents. It does represent progress. It is this acknowledgement by all governments, for the first time in history, that linguistic duality is a fundamental characteristic of our federation and that they have a role to protect that. That is a basis. That is all it is. It is a minimum, not the maximum, and on that foundation we can and will build and we are building, in collaboration with the provinces, to promote linguistic duality.

87. Amending the Constitution to include an explicit and unanimous acknowledgement of Canada's "linguistic duality" across the country is, in the Joint Committee's view, a major achievement.

(b) English-speaking minority in Quebec

88. Representatives of the English-speaking minority in Quebec expressed concern about what "promotion" of the distinct identity of Quebec might do to their minority rights.

89. Former Senator Eugene Forsey pointed out that the English-speaking minority in Quebec numbers over 800,000, ("something depends on whether you measure it by mother tongue, or by the language usually spoken in the home"), which he stated to be larger that the population of Newfoundland, New Brunswick, Prince Edward Island or Saskatchewan. It is almost as large as the total population of Nova Scotia. It is larger than the combined French-speaking minorities of Ontario and New Brunswick and, according to Senator Forsey:

The English-speaking minority in Quebec might find that the principle of duality gave them nothing, and the principle of the distinct society gave the Legislature and Government of Quebec the power to take away such rights as they now have. The English-speaking minority might find that what was sauce for the French goose was not sauce for the English gander.
(Forsey submission, p. 8)

90. The weight of opinion among other constitutional experts, however, appears to be to the contrary. The language and educational rights of English-speaking Quebeckers are already entrenched in clear and explicit terms in the Constitution Act, 1867 and in the Charter. The Supreme Court of Canada has considered their application to a variety of factual situations. The jurisprudence in the area is extensive. It is unlikely, in the view of these experts, that a mere interpretative clause could be used to weaken the constitutional guarantees that are already in place. The government view, expressed by Senator Lowell Murray, was as follows:

In any case, they [the English-speaking minority in Quebec] have section 133 of what used to be the British North America Act regarding the use of the languages in the legislature of Quebec and in the courts, and there is section 23 of the Charter of Rights and Liberties concerning the language of instruction. So it would be difficult to see how this declaration, this interpretative clause, does anything but enhance, albeit slightly, the status of those minorities.

91. The Joint Committee accepts the advice that the "linguistic duality" clause is a "constitutional step in the right direction for French-speaking minorities outside Québec and that in law the "distinct society" clause is unlikely to erode in any significant way the existing entrenched constitutional rights of the English-speaking minority within Quebec.

Question 2: Will recognition of the "linguistic duality" and Quebec's "distinct society" disadvantage Canada's multicultural heritage?

92. Section 27 of the Constitution Act, 1982 recognizes the multicultural heritage of Canadians and instructs the courts to interpret the Canadian Charter of Rights and Freedoms consistently with this heritage.

93. A number of representatives of Canadian ethnocultural organizations dedicated to the preservation and promotion of this multicultural heritage expressed their concern to the Committee that the "linguistic duality/distinct society" rules of interpretation might have negative implications for the status of multiculturalism in Canada.

94. The German Canadian Congress reminded the Committee that a Constitution has a symbolic as well as a practical significance and told us that insofar as the "linguistic duality/distinct society" clause attempted to define Canadian reality, it was in the Congress's view, incomplete and inaccurate:

Our observations are guided by the reality that the Constitution is both a legal and a sociopolitical document. It not only sets out the legal framework for the governing institution of the nation and the rights and freedoms of individuals but also makes a statement about and is indeed guided by the sociopolitical values and realities of the nation.

It is our position that the interpretation clause of the Constitution, as proposed in section I of the accord, is not true to the social reality of Canada in the 1980s and, for that matter, in the future. It recognizes a linguistic duality, and English-French duality, which is only part of the Canadian society we live in today. Whether we speak of culture pluralism, community of communities, sociocultural mosaic, or multiculturalism, the fact is that we are a society quite different from the 1940's and l 950's and one that is undergoing sociocultural changes of enormous proportions.
(German Canadian Congress 7:70-71)

95. According to the Chinese National Council, the linguistic duality recognized in proposed section 2(1)(a) of the Constitution Act, 1867 described less of the Canadian reality than did multiculturalism:

If paragraph 2(1)(a) is allowed to stand by itself, without a similar clause addressing multiculturalism, which would include these members of our community, the Constitution will not be broad enough to address the true nature and reality of Canada fully. In other words, bilingualism does not embrace all Canadians; it may officially, but may not in fact, whereas multiculturalism does.

96. Other witnesses worried that recognition of Quebec as a "distinct society" might implicitly carry with it a denial of pluralism and an expectation that members of ethnic communities will have to assimilate into one of the two dominant cultures.

97. Few if any of the representatives of ethnocultural communities objected to describing linguistic duality as a fundamental characteristic of Canada nor did any deny the importance of recognizing the distinctness of Quebec society within Canada. Their objection was to a definition of Canada that includes linguistic duality but does not speak of multiculturalism; that identifies Quebec's distinctness but is silent about other distinct elements in the Canadian mosaic. Some saw this as a "backward step" from the notion of bilingualism and multiculturalism to bilingualism and biculturalism. Others see the lack of mention of multiculturalism as either an intentional downplaying of Canadians whose ethnic origin is neither English nor French, or as a telling lapse which indicates that Canada's political leaders are insufficiently sensitive to present cultural realities.

98. To correct this omission, they propose to amend section 2(1) either by adding the words "within a multicultural Canada" to paragraphs (a) and (b) of subsection 2 or to add to the subsection a new paragraph (c) which would also recognize multiculturalism as an interpretive principle for the Constitution of Canada.

99. The Canadian Ethnocultural Council considered this proposal so vital that it suggested that unless it were accepted, the Accord should be rejected. The Ukranian Canadian Committee agreed, stating that if the multicultural reality of Canada is not enshrined in the Constitution now, it never will be.

100. The Joint Committee fully agrees with the vital importance of our multicultural heritage but we do not share the concerns expressed with regard to the omission from section 2 of any mention of multiculturalism. Section 2(1)(a) does not purport to offer a comprehensive definition of Canada. It is, as we have indicated, an articulation of one of the fundamental characteristics of Canada. Had First Ministers attempted to formulate a comprehensive definition that captured all of the fundamental characteristics of Canada they would have gone far beyond their agenda of dealing with amendments necessary to enable the government of Quebec to give its willing assent to the Constitution.

101. The Committee also agrees that the lesson of the darker episodes in the history of Canada's treatment of its minority groups as recounted to us, among others, by the National Association of Japanese Canadians, the Chinese National Council, fully justifies the determination of ethnocultural groups to ensure that recognition of Canada's linguistic duality and of Quebec's distinct society does not override recognition of our multicultural heritage. That, we believe, is the intent of section 16 of the Accord. Whatever else it might do, section 16 counters any possible implication that recognition of linguistic duality and the distinct society as interpretative principles would be capable of compromising the continuing status of Canada's multicultural heritage as another interpretative principle.

102. The Committee understands the desire of the representatives of some 30% of Canada's population whose ethnic origin is neither British nor French to see multiculturalism given a more prominent position in the Constitution and to have multicultural rights strengthened. We see no reason to doubt that First Ministers, all of whom have expressed strong support for multiculturalism, will address this topic in their further constitutional discussions and we have no hesitation in recommending that this topic be added to their agenda at one of their forthcoming conferences.

103. In the interim we do not believe that adoption of the "linguistic duality/distinct society" rule of interpretation will transform our cultural mosaic into a melting pot and we would not recommend rejecting the 1987 Accord because its framers did not go beyond their agreed upon agenda to give multiculturalism the prominence it may one day achieve.

Last HTML revision: 13 November, 1995.

William F. Maton