A new path toward greater autonomy for Quebec

by Alain Noël. Originally published on Policy Options
December 2, 2024

(Version française disponible ici)

Last June, François Legault’s government formed an advisory committee on constitutional issues, with the goal of identifying ways to promote Quebec’s distinct values and identity, strengthen respect for its areas of jurisdiction and ensure its autonomy within the Canadian federation.

Six months later, the committee chaired by two legal experts – former Liberal minister Sébastien Proulx and law professor and former PQ candidate Guillaume Rousseau – presented a substantial report with 42 recommendations. Taken together, the proposals constitute a demanding but plausible roadmap, a vision of the place a more autonomous Quebec might have in a decentralized Canadian federation.

The report begins by situating Quebec as a nation-state with its own history and identity, and as a federated state within a Canadian federation that from the outset recognized, albeit sometimes reluctantly, Quebec’s distinct character and autonomy. It then briefly reviews the many attempts at reform, which have never succeeded in striking a balance acceptable to all.

The six authors – the two co-chairs, as well as Amélie Binette and Catherine Mathieu (both legal scholars), Luc Godbout (tax expert), and Martine Tremblay (former René Lévesque chief of staff and public affairs consultant) – break with this history of constitutional wrangling by rejecting a return to mega-negotiations. A reasonable position, given no one wants to go down that road. A few years ago, when the Couillard government announced its own constitutional proposal to simply keep the conversation open with the rest of the country, Justin Trudeau refused to even talk about it.

The new report titled Ambition. Affirmation. Action. suggests instead building up the gains one-by-one, with more recognition of Quebec, its jurisdictions and its autonomy. Rather than staying on the defensive and waiting for an opportunity that will never come, the authors draw up a list of changes and gains to be achieved gradually.

Constitutional self-serve

Given the current stalemate, the preferred approach is unilateralism, to achieve straight away what can be done without asking permission. Some reforms will require a bilateral Quebec-Ottawa approach, others a multilateral one. But these are more difficult and less promising avenues.

Dominated by lawyers, the committee recommends the adoption of a codified Quebec constitution, which would “recast” fundamental rules, norms and symbols to affirm Quebec’s non-subordination to the Canadian federal order and the constitutional existence of the Quebec nation.

The committee also proposes the adoption of a framework law on the defense and enhancement of constitutional freedom, inspired by legislation of this type recently adopted in Alberta and Saskatchewan, with the aim of better countering federal interference in Quebec’s jurisdictions.

The authors envisage a modification of Quebec’s own Charter of Human Rights and Freedoms as well, to better reflect concerns specific to Quebec and the imperative to protect the French language.

It will be up to constitutional law scholars to assess the concrete significance of these legal recommendations, which seem largely symbolic. However, the potential pitfalls of the approach seem to have been overlooked by the committee, which included neither a sociologist nor a political scientist. Even when proceeding unilaterally, reaching consensus on nationhood, identity and the rights of all parties concerned is never easy. Those who remember the Meech and Charlottetown years can easily imagine the difficulty of repeating such an exercise, even within Quebec only, in the age of social media.

Make or break

In October 2023, Australians rejected in a referendum a modest constitutional reform that simply recognized Aborigines as the country’s original inhabitants and gave them a voice in a new advisory council. Paved with good intentions, this failed attempt at reconciliation left the ties between Australia’s peoples in worse shape than they already were.

In 2022, Chileans voted against a proposed constitutional reform breaking with its legacy of dictatorship, judged too far to the left. Then, in 2023, they rejected another proposal, this one too far to the right. The young left-wing president, Gabriel Boric, finally turned the page and concluded that there would be no further attempts. Which goes to show that agreeing on the foundations and institutions of a nation is rarely easy.

The advisory committee does recognize some limits of the unilateral approach. When it comes to sharing tax resources, for example, it would be necessary to come to a bilateral or multilateral agreement with Ottawa, or resort to the courts. It is the latter approach that the committee recommends in the case of new uses of the federal spending power, such as the Canadian Dental Care Plan, or to dispute the imposition of a ceiling on the equalization program.

The committee also proposes opening negotiations to replace federal transfers for health and social programs with increased tax room for Quebec, specifically through the transfer of all goods and services tax revenue. It also favors a single income tax return administered by Revenu Québec.

Thanks, but no thanks?

In the case of fiscal federalism, the challenge is to convince the federal government to relinquish the resources and power at its disposal in exchange for, at best, a lukewarm thank you. Quebec has nothing to offer in return for such decentralization, and it’s hard to see why Ottawa would agree to play along. “The golden rule of fiscal federalism,” said Canadian economist Tom Courchesne, “is that he who has the gold makes the rules.”

Some strategies could go awry. An unsuccessful court challenge, for example, could further bolster the federal government’s ability to intervene in a Quebec jurisdiction. The committee passes over this possibility lightly, noting simply that in the event of an unfavorable decision, the Quebec government would simply have to “continue the fight.” Was it Leonard Cohen who wrote of “beautiful losers”?

A third component concerns the Quebec government’s participation in federal appointments to the positions of judge and lieutenant governor, as well as the initiation of a process to reform the Senate. Other recommendations concern immigration, culture and international relations.

The way forward

This report on Quebec’s place in the federation has the great merit of putting Quebec’s demands on the table and articulating them, while initiating reflection on how to realize its aspirations. Committee members favor unilateralism whenever possible, but they also recognize the need for bilateral or multilateral agreements, particularly on financial issues.

The various recommendations are sometimes in tension with one another. For example, they challenge the very existence of programs justified by the federal spending power while maintaining Quebec’s right to opt out of such programs with full compensation.

How Quebec is building on René Lévesque’s fateful constitutional legacy

Support for sovereignty in Quebec: the role of identity, culture and language

But the main stumbling block lies in the politics that would accompany the envisaged reforms. To give itself a constitution and a coherent citizenship regime, Quebec must embark on a vast process of deliberation that risks creating tensions that could boil over.  The matter is not as simple as it seems. On the fiscal front, the hurdle is even more daunting, since any progress requires a willing retreat on the part of the federal government.

But the report presents a coherent roadmap for the Quebec government, a sort of political survey that indicates the path to follow in the years ahead. Its implementation will be difficult and often stalled by obstacles. But we now have an explicit set of objectives to pursue, in order to better recognize Quebec’s specificity and autonomy within the Canadian federation.

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This article first appeared on Policy Options and is republished here under a Creative Commons license.