Bills of Rights as Instruments of Nation-Building in Multinational States: The Canadian Charter and Quebec Nationalism

46 Pages Posted: 19 Aug 2007

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Global Constitutionalism, WZB Berlin Social Science Center

Date Written: August 2007

Abstract

On the eve of the 25th anniversary of the Canadian Charter of Rights and Freedoms, Canada was plunged once again into an existential debate over the very nature of the Canadian political community. As so often in the past, the issue was Quebec. Quebec's political elites have long referred to the province, its institutions, its symbols and its collective goals in national terms. Over the course of the summer and fall of 2006, Canada debated whether Quebec should be formally recognized as a "nation". To a large extent, the debate was fuelled by Liberal leadership candidate Michael Ignatieff, who called for the Canadian Constitution to be amended to explicitly acknowledge "the national status of Quebec". Ignatieff's proposals dominated the Liberal leadership race over the course of the fall and badly divided the party, and threatened to spill over into the House of Commons, when the separatist Bloc Quebecois announced that it would table a motion that would "recognize that Quebeckers form a nation". Facing dissension from within his own caucus, Prime Minister Harper responded with a resolution of his own, to recognize the "Quýbýcois" as "a nation within a united Canada". The motion was easily passed by the House of Commons, drawing this round of constitutional politics to a close.

It would be tempting to analyze this episode in purely political terms. But instead, I want to draw attention to a puzzle and a curious omission. The puzzle, stated by Liberal Party leader and political scientist Stephane Dion, is this: although the constitutional recognition of Quebec as a nation generated heated debates, it was strictly a symbolic measure that would have had no legal effect. To Dion, a constitutional symbol, "although desirable, is not necessary." Yet constitutional symbols mattered centrally to both the proposal's proponents and detractors. The question is why.

The curious omission is the Charter. The Charter was a direct response to the centrifugal pressures of Quebec nationalism. So not surprisingly, it was Quebec which objected most to the Charter. And it was the adoption of the Charter over Quebec's objections that sparked two decades of constitutional politics to reach a constitutional accommodation with that province, including Ignatieff's proposals. In short, the Charter is an integral part of how Canada found itself debating Quebec's status as a nation nearly 25 years after it was adopted. Yet the Charter was hardly mentioned at all during the debate over Ignatieff's proposal.

I want to tie the debate over the constitutional recognition of Quebec as a nation to the impact of the Charter on Canadian constitutional culture. Support for Ignatieff's initiative was sharply polarized on linguistic grounds. Francophones within Quebec were its most enthusiastic supporters, whereas Anglophones outside of Quebec were its most vociferous critics. This pattern of political opinion reflects differing underlying patterns of national identification. Francophones inside Quebec tend to view Quebec as their primary national political community, whereas Anglophones outside Quebec tend to identify with Canada.

My view is that these competing patterns of national identification reflect the rather mixed legacy of the Charter. The Charter was intended to serve as the centerpiece of a common Canadian nationality that transcended the linguistic divide. But while the Charter has been an effective tool for anglophone nation-building, it has been unsuccessful in combating Quebec (read: Francophone) nationalism. Indeed not only did the Charter not offset Quebec nationalism; it may have made things worse. Had the Charter been effective at combating Quebec nationalism and serving as the glue of a pan-Canadian national identity, the last twenty years of constitutional politics would not have happened. There would have been no Meech Lake Accord, no Charlottetown Accord, and no referendum in 1995 in which the country came close to break-up because of the threat of a unilateral declaration of independence in the event of a yes vote. Because all of these things did happen, one of the basic political purposes of the Charter was not met.

This is a cautionary tale to multinational polities faced with the same challenge as Canada - of building a common political identity against the backdrop of competing nationalisms and which attempt to do so through a bill of rights.

Keywords: constitutional law, constitutional politics, comparative constitutional law

Suggested Citation

Choudhry, Sujit, Bills of Rights as Instruments of Nation-Building in Multinational States: The Canadian Charter and Quebec Nationalism (August 2007). U Toronto, Legal Studies Research Paper No. 1006905. Available at SSRN: https://ssrn.com/abstract=1006905 or http://dx.doi.org/10.2139/ssrn.1006905

Sujit Choudhry (Contact Author)

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

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