CHAPTER 3 Break the promise

Canada must end because its federal government broke the promise of the deal that is Confederation. And when you break the promise of a deal, you break the deal itself.

What deal are you talking about? And what “promise”?

When Canada was formed, a solemn promise was made to the linguistic and religious communities, many of which were to became minorities with the creation of the four provinces of Confederation, that if any provincial legislature were to abrogate their civil or minority rights, the federal government would swiftly and without hesitation “veto” such legislature. Specific federal powers were put into the BNA Act primarily for this reason:

R. MacGregor Dawson recognized three classes of cases which justified disallowance, the third concerning fundamental rights:

What other powers are there in addition to disallowance?

Reservation, the declaratory power, and the section 93 provisions concerning schools. Pierre Trudeau referred to “blunt tools left in the BNA Act: disallowance, taxation -- all modes of taxation; the declarative clause; expropriation for federal purposes, and so on.” [33]

This "veto" power, as it was referred to in the Confederation Debates,[34] wasn't just some obscure one-time mention; it was a promise and commitment made numerous times and, indeed, Confederation may not have taken place had those powers not been put in and that specific promise not made.

Why was violation of minority and individual rights a concern?

With Confederation came the creation of the four provinces that prior to 1867 didn't exist...and because they didn't exist, there weren't provincial minorities such as the English/Protestants of Quebec. So it was with the creation of Canada that provincial minorities such as the Quebec Anglophones came into being. The Fathers of Confederation knew this, acknowledged this, and foresaw the problems that could -- and did -- arise from it.

The potential for abuse of minorities by the new provincial majorities and their representatives in the new provincial legislatures was dealt with quite clearly and unambiguously in the Confederation Debates.

Can you give some examples of the promise from the Confederation Debates?

Abusive laws such as Bill 101 were seen as a very real possibility. It is quite clear that the legal remedies previously mentioned were, in part, put in place in to protect against such abuses.

Aren’t disallowance and those other powers now obsolete?

Disallowance hasn’t been used since 1943 when it was invoked in order to thwart legislation in Alberta of questionable monetary policy.[35] The argument is therefore made that disallowance has fallen into "disuse" because it hasn't been employed in over seventy years which makes it unavailable. Interesting reasoning but flawed because, if true, this would mean that one of the most significant pieces of federal legislation of the last twenty-five years could not have occurred.

In 1990, the Progressive Conservative government of Brian Mulroney attempted to have Goods and Services Tax (GST) legislation pass the Liberal-dominated Canadian Senate, which was stalling. The only way to get it passed, Mulroney decided, was to increase the number of Conservative senators by instructing his Governor-General to invoke a never-before-used provision of the BNA Act which allowed him to appoint new senators. This resulted in a Conservative majority which only then enabled the GST legislation to become law.[36]

If the argument is put forward that disallowance has fallen into "disuse" because it hasn't been used in almost seventy years, what does that say about a constitutional provision that hadn't been used in 125 years?

Was the federal government ever asked to formally disallow repressive language legislation passed by Quebec?

Yes. In 1974, then Prime Minister Pierre Trudeau was presented with a petition of over 600,000 signatures demanding that he disallow Bill 22, passed by the Quebec Liberal government of Robert Bourassa.[37] Trudeau refused. Of course, members of the very same English-speaking minority who no doubt signed the petition and would have been beneficiaries of disallowance were those that made up most of Trudeau’s own Mont-Royal riding. They rewarded Trudeau’s refusal by continuing to vote him into office with massive majorities, time after time.

Brian Mulroney was formally asked to disallow Bill 178, an amendment to Bill 101’s sign provisions, in 1989. Bill 178 was particularly onerous due to its official suspension of freedom of expression and equality rights through the use of the “notwithstanding” clause by a subsequent Liberal government, again under the premiership of Robert Bourassa.

Mulroney refused, explaining that the “use of the federal disallowance power would not be justified in this case -- as it was not when Prime Minister Trudeau refused to disallow the more restrictive Bill 101, suggesting it should ultimately be judged in the political arena.”[38]

But Francophones outside Quebec had their fair share of rights trampled upon, too. Why wasn’t this “veto” power used to protect them…wasn’t it there for that purpose as well?

This is the great shame of Canada.

There is not one instance in Canadian history since its founding in 1867 in which the federal government ever used its “veto” power to protect provincial minorities when they needed it, be it the New Brunswick School Act of the 1870s used against Catholics, Manitoba in the 1890s against Francophones, Ontario in the early part of the 20th century against Francophones, or in Quebec against the Anglophone minority numerous times over a thirty-five year period starting with Bill 22 in 1974.

The New Brunswick School Act is a case in point because it was the first opportunity the federal government had to exercise its responsibility as the Act occurred only five short years after 1867. The provincial legislature of New Brunswick passed a bill that abrogated the rights of the francophone and Catholic minorities. As a result, a federal MP from New Brunswick named Costigan proposed several motions in Parliament over the course of several years demanding that the federal government step in and veto the Act through the use of the above-mentioned powers. Collectively, these series of motions became known as The Costigan Motion.[39]

The Government of Canada refused. Repeatedly.

And who led the charge against protecting the provincial minorities of New Brunswick? None other than Georges-Etienne Cartier, who was almost single-handedly responsible for squashing New Brunswick minority's attempts to have their rights protected.

The most outraged community to rally against Cartier for not protecting their co-religionists in the neighboring province were Quebec’s Francophones who felt he had gone back on his word and responsibilities as a federalist. They considered Cartier as such a sell-out that he was, until his death, shunned by a large portion of the French-Canadian community.

But Cartier’s precedent in this area endured: contrary to its responsibility and obligation, the federal government adopted Cartier’s approach of betrayal of Canada’s provincial minorities. They consciously and purposely -- usually to curry favour and votes from provincial majorities -- broke the promise of Confederation that was solemnly and universally declared upon the birth of our nation.

Cartier summed up in the following words the policy that has apparently replaced the federal government‘s responsibility to protect provincial minorities. In an attempt to disarm their arguments, he said this in response to his French-Canadian detractors during the New Brunswick School Act crisis :

Sadly, Cartier’s view won the day. Bills 101, 178, 22 etc. were, in a sense, foreseen by the Fathers of Confederation and the responsibility to hold such legislation in check clearly put under the jurisdiction of the central government. Unfortunately, from the get-go Ottawa has always found it easier to go the route of political expediency and forego using these powers rather than protect minorities.

What would protect minorities better: disallowance or the Canadian Charter of Rights and Freedoms?

Implementation of the disallowance or reservation powers is swift; unlike a court challenge which can take as much as seven to 10 years to inch its way up the appeals process to the Supreme Court (during which time the damaging provincial law can still be in effect), these federal powers take all of about five minutes to use.

Would the minorities of Canada rather have had Pierre Trudeau heed the wishes of those 600,000 signatures in 1974 demanding that he disallow Bill 22 or wait until December 1988 when the Supreme Court finally passed down its decision on Bill 101’s language of commercial signs, almost a decade after the start of a court challenge (and then, of course, the whole exercise was deemed moot by the invocation of the “notwithstanding” clause)?

Doesn’t the protection afforded minorities by the Canadian Charter of Rights and Freedoms now make the veto powers unnecessary?

Not if the challenges to Bill 101 that have gone before the courts are considered (more on this later). Unfortunately, a political component is attached to the Charter which is looked upon by many Quebecers as having been created solely to attack Bill 101:

Disallowance and the other “veto” powers are looked upon as an affront to Quebec sovereignty. Indeed, their removal has been a popular request by provincial governments in numerous constitutional negotiations and accords over the years, such as 1992’s Charlottetown Accord.

If the Canadian charter of rights would actually protect Canada’s minorities, I would not mind if the “veto” powers were removed from the constitution. But it doesn’t. As former Suburban reporter Irwin Rapoport once observed: “The Charter may not work, but at least you can get a free copy from the government.”

And you feel that this reluctance of the federal government to fulfill this “promise” of Confederation will have dire consequences for the country?

A deal is a deal. Break the promise of a deal and the deal is, by definition, broken. Use of the “veto” power by the federal government to protect the provincial minorities of Canada was a promise that was part and parcel of the Confederation deal.

This promise has explicitly been broken. What does that tell you will happen to the deal that is Canada?