On the eve of Canada’s 150th birthday, in 2017, the then-premier of the country’s most reluctant province interrupted the party preparations with an awkward reminder of the federation’s unfinished constitutional business. Philippe Couillard, the Liberal premier of Quebec, chose the moment to call for an end to an unofficial moratorium on federal-provincial talks to recognize his province’s distinct character in the country’s supreme law.
In making his bid to relaunch negotiations that had broken down in 1992, after Canadians rejected the Charlottetown accord in a national referendum, Mr. Couillard aimed to ensure Quebeckers no longer felt “like exiles in their own country.” This, apparently, was asking too much. The rest of Canada, beginning with its then-prime minister, blew him off.
After the failure of Charlottetown, and its 1987 predecessor, the Meech Lake accord, the rest of Canada had given up on attempting to accommodate Quebec’s constitutional demands. The French-speaking province had objected to the adoption of the 1982 Constitution without the inclusion of enhanced protections for its language and culture. While the rest of Canada moved on, Quebeckers never forgot the “coup d’état de 1982.”
“The 150th anniversary of the federation provides an opportunity to resume a meaningful dialogue on the place of the country’s different national elements, on the role and composition of its institutions, on the principles that guide intergovernmental relations – in short, on the evolution of federalism,” declared the Couillard government’s 192-page proposal for renewed talks, entitled “Quebecers, Our Way of Being Canadian.”
Mr. Couillard’s outstretched hand was summarily snubbed by then-prime minister Justin Trudeau, whose father Pierre Trudeau had been the architect of the 1982 Constitution and the adoption of the Charter of Rights and Freedoms. “You know my views on the Constitution,” the younger Trudeau snapped. “We’re not reopening the Constitution.”
If Mr. Trudeau felt he could be so dismissive of Mr. Couillard’s proposals, it might have been because Quebec’s sovereigntist movement appeared, at the time, to have run out of steam. Support for the Parti Québécois had plummeted as the upstart Coalition Avenir Québec captured nationalist voters by promising to obtain more autonomy for the province within Canada and, importantly, to never hold another divisive referendum.
Now, as Quebeckers prepare to vote in a provincial election on Oct. 5, the PQ is back on top of the polls and potentially poised to form a majority government, based on its large lead among francophone voters. The sovereigntist party’s stunning comeback may be partly attributed to the CAQ’s second-term blunders, unrelated to the constitutional file, under former premier François Legault, who stepped down in April. Regardless, PQ Leader Paul St-Pierre Plamondon’s vow to hold a third referendum – though not, he now says, while U.S. President Donald Trump is in office – has put sovereignty squarely back on the agenda.
The rest of the country is wholly unprepared for where this might lead. Prime Minister Mark Carney’s government has been laser-focused on countering rising separatist sentiment in Alberta. An Oct. 19 referendum asking Albertans whether they want to remain in Canada or hold a binding plebiscite on secession has stolen the media spotlight.
As a result, more than twice as many Canadians consider the possibility of a referendum on Alberta separation to be a bigger threat to national unity (45 per cent) than a future plebiscite on Quebec secession (17.8 per cent), according to a June Nanos Research poll.
This defies logic, and history.
Quebeckers’ visceral attachment to their unique culture is rooted in their 400-year-old struggle for la survivance. The Quebec sovereignty movement grew out of this quest, not out of circumstantial economic grievances toward Ottawa, as is the case in Alberta.
While current polling shows strong majorities of voters in both Alberta and Quebec would reject separation, one can plausibly imagine a scenario in which a PQ government could sway enough Quebeckers to vote Yes in a future referendum. After all, it almost happened once before, in 1995, when sovereigntists fell less than a percentage point short of victory.
Francophone Quebeckers are intrinsically nationalist. Almost two-thirds of them identify first or only with their home province, rather than Canada, according to the Environics Institute’s most recent Confederation of Tomorrow survey. Many francophones who say they would vote No now could switch sides during a referendum campaign to ensure their province does not face a third defeat that weakens its negotiating hand.
Sovereigntist support could also surge if three controversial laws passed by the CAQ government aimed at affirming Quebec’s distinctness are struck down by the courts. Two of these laws involve Quebec’s unilateral moves to amend the Canadian Constitution to declare French as the province’s only official language and to abolish the oath to King Charles III for members of the National Assembly. The other concerns la laïcité, Quebec’s unique form of secularism, which enjoys broad support in the province even though it interferes with certain Charter rights. Court rulings invalidating or defenestrating these laws could help a PQ government create the winning conditions for a Yes victory.
If another referendum is held, the PQ could well be third time lucky.
The PQ’s return to the fore of Quebec politics under Mr. St-Pierre Plamondon has upended the narrative that many analysts had subscribed to after the CAQ first swept to power in 2018. In their telling, Quebeckers opted for the CAQ’s “third way” after decades of feeling they had been held hostage to referendum politics by the federalist Quebec Liberal Party and the PQ, which had sought to polarize public opinion around the secession question.
Mr. Legault, an ex-PQ cabinet minister who founded the CAQ in 2011, had solid nationalist credentials. But he insisted he could protect Quebec’s culture and enhance its autonomy by seeking more power from Ottawa without threatening to break up the country. During his first term, which covered the COVID-19 pandemic, he often appeared to walk on water.
At the outset of the 2022 election campaign, support for the PQ was hovering in the single digits. Thanks to a breakthrough campaign performance by Mr. St-Pierre Plamondon, the sharp-witted Oxford University-educated lawyer who became PQ Leader in 2020, the sovereigntist party managed to win 14.6 per cent of the vote – but only three seats – in the 2022 election.
It is what Mr. St-Pierre Plamondon – who is known by his initials, PSPP – did next that really caught Quebeckers’ attention and helped relaunch his party. He, along with his two PQ colleagues, refused to swear an oath to King Charles III to sit in the National Assembly.
Nationalist MNAs had long complained about having to declare allegiance to the monarch, a requirement under Section 128 of the Constitution, but had begrudgingly gone along with it. In 1982, then PQ premier René Lévesque added a second oath – proclaiming loyalty to the Quebec people – to ease the sting of having to bow before the British Crown, which remained for many Quebeckers a hated symbol of La Conquête.
“The absurdity of this ritual has gone on long enough,” Mr. St-Pierre Plamondon declared after the 2022 election. An overwhelming majority of voters agreed. A Léger poll found that 76 per cent of all Quebeckers, and 82 per cent of francophones, favoured conserving the oath to the Quebec people; only 15 per cent wanted to keep the oath to the King.
“Quebeckers were proud to see this resistance to the monarchical symbol,” Catherine Mathieu, a constitutional law professor at l’Université du Québec à Montréal, says of Mr. St-Pierre Plamondon’s act of defiance. “It reinserted the PQ and its aspirations into the political conversation. PSPP and his MNAs were able to capitalize on that attention.”
This left Mr. Legault’s newly re-elected CAQ government scrambling to conserve the nationalist mantle that it had inherited in 2018. It quickly tabled legislation to abolish the oath to the monarchy for MNAs through a unilateral amendment to the Constitution to exempt Quebec from Section 128. The National Assembly unanimously adopted the bill.
Experts were divided over whether Quebec could invoke Section 45 of the Constitution, which allows provincial legislatures to “make laws amending the constitution of the province,” to abolish the oath requirement for its MNAs. But the Trudeau government did not oppose the move, suggesting its own legal opinions supported Quebec’s position.
(As with those of other provinces, Quebec’s constitution – which is considered part of the Canadian Constitution – is not contained in a single written text; rather, it is composed of provincial laws governing such matters as the electoral system and the rules of the National Assembly, the provincial human-rights code and unwritten conventions, in addition to the parts of the federal Constitution that relate to its exclusive areas of jurisdiction.)
The CAQ government had used Section 45 to unilaterally amend the Constitution once before with Bill 96, its beefed-up version the 1977 Charter of the French Language. The law, tabled in the spring of 2021, inserted two clauses into the Constitution to state that “Quebeckers form a nation” and that French “shall be the only official language of Quebec.”
Here, too, Mr. Trudeau did not object. His muted response sharply contrasted with his reaction, four years earlier, to Mr. Couillard’s request to relaunch constitutional talks. But unlike in 2017, when he commanded a majority government, he was in a much weaker political position in 2021. Picking a fight with Quebec could have threatened his party’s chances of holding onto francophone seats in the province in that year’s federal election.
Indeed, the political salience of the issue was borne out when the Bloc Québécois tabled a House of Commons motion endorsing the constitutional amendments set out in Bill 96. The motion passed overwhelmingly with 281 votes. Only two MPs voted against it; 50 MPs abstained, including 11 Quebec Liberals from mostly anglophone and allophone ridings.
The constitutional amendments contained in Bill 96 and Bill 4, the law abolishing the oath to the monarchy for MNAs, were largely inspired by the academic work of a new generation of nationalist jurists and political scientists who had advocated unilateral action by Quebec to shatter the “constitutional inertia” of the previous decades.
A similar movement in favour of unilateralism emerged in Alberta and Saskatchewan, though one largely aimed at stymieing federal climate policies and asserting provincial control over resource development. In Quebec, unilateral action was instead promoted as a tool to affirm Quebec’s distinct identity in the Constitution without having to engage in inevitably contentious multilateral negotiations with Ottawa and the other provinces.
“We had been told in our constitutional law courses that constitutional reforms were impossible in Canada, that the fruit was not ripe, that it was too complex,” explains Prof. Mathieu, who co-edited a recent collection of essays on the new trend of constitutional unilateralism. “But it is not because it is complex that provinces can content themselves with the status quo. Unilateralism is a response by certain provinces to increase their autonomy without going through elaborate rounds of [federal-provincial] negotiations.”
It remains a matter of fierce legal debate whether the amendments introduced into the Constitution by Bill 96 are merely symbolic or create new protections for Quebec’s language and culture that courts will be required to consider in assessing the constitutionality of provincial legislation. That is because while Section 45 empowers provinces to unilaterally amend their own constitutions, many experts contend that such amendments cannot alter the overarching architecture of the Constitution, including the Charter.
Ultimately, it will be up to the courts to rule on the matter.
In a legal challenge to Bill 96, a Quebec English-language rights group called the Task Force on Linguistic Policy argues that the amendments included in the law violate Section 133 of the Constitution, which stipulates that both French and English can be used in Quebec courts and the National Assembly. The group’s lawsuit also charges that Bill 96 “indirectly and impermissibly bring into effect the concept of ‘distinct society’ which the so-called Meech Lake and Charlottetown Accords failed to achieve” and will hence have “an interpretative impact on the division of powers” between Ottawa and Quebec.
Of course, this is exactly the effect their proponents hope they have.
“I think [Section 45] is an element of the Constitution that can lead courts to grant more autonomy to Quebec, particularly in language matters,” insists Université de Sherbrooke law professor Guillaume Rousseau, a former PQ candidate tapped by Mr. Legault to co-chair a 2024 commission on ways for Quebec to increase its autonomy within Canada.
Prof. Rousseau, who is now running for the CAQ, also advocates systematic pre-emptive use of the Constitution’s notwithstanding clause (which nationalist politicians refer to as the “parliamentary sovereignty clause”) to shield provincial legislation from Charter challenges, as Mr. Legault’s government did in Bill 96 and Bill 21, its secularism law. He concedes bilateral negotiations with Ottawa are still necessary to achieve some of the CAQ’s autonomist goals, such as gaining exclusive jurisdiction over immigration and a deciding say in the nomination of judges.
“The CAQ’s position is to say that we will use all the means at our disposition to secure more autonomy unilaterally, sometimes bilaterally, but more often unilaterally with Section 45 and the parliamentary sovereignty clause,” Prof. Rousseau says.
In its recent 550-page “blue book” on sovereignty, the PQ argues Bill 96’s constitutional amendments carry no legal weight. “The recognition of Quebec as a nation/distinct society will have no effect unless [Ottawa and all provinces] agree that this recognition should produce tangible effects,” the document says. “This means that the Legault government deceived Quebeckers with respect to this issue, unless the objective was simply to affirm something to an interlocutor that is not listening.”
The legality of Quebec’s abolition of the oath to the King is also before the courts. A lawsuit brought this month by the Public Interest Litigation Institute (PILI) argues that the move “exceeds the scope of permissible unilateral constitutional amendments” under Section 45.
Indeed, Article 41 of the Constitution stipulates that amendments related to “the office of the Queen, the governor-general, and the lieutenant governor of a province” require the approval of the House of Commons, the Senate and the legislatures of every province. The PILI, a group led by University of Ottawa law professor Lawrence David, also contends that exempting MNAs from Section 128 undermines democratic rights guaranteed in Section 3 of the Charter by “leading to the election of politicians who are not constitutionally qualified to sit in the National Assembly by refusing to take the oath of allegiance.”
The legal intricacies of constitutional law may be lost on average Quebeckers. But history has shown they are never indifferent to how courts rule on efforts by the National Assembly to protect their language and culture.
No future court ruling will be as closely followed by Quebeckers, or as potentially explosive, as the Supreme Court of Canada’s decision on Bill 21, expected in the fall.
Bill 21 prohibits Quebec public servants in a position of authority (including teachers) from wearing religious symbols on the job. The Supreme Court must decide whether Quebec’s pre-emptive use of the notwithstanding clause in Bill 21 prevents a judicial review of the law, as the province contends, or whether to set limits on its use.
A ruling by the Supreme Court that censures Quebec or constrains its ability to invoke the notwithstanding clause would be a gift to the PQ, buttressing its argument that the federal system remains a dangerous threat to Quebec’s language, culture and values.
The PQ seized on the Carney government’s cancellation of the federal digital services tax on foreign streaming giants and the suspension of a rule requiring them to contribute 5 per cent of their Canadian revenues to producing Canadian content. With these moves, which sought to appease Mr. Trump – unsuccessfully – the PQ warned that it was “useless, even perilous” for Quebec to count on Ottawa to protect its culture. Mr. Carney’s refusal to bow to last-minute U.S. demands to scrap “discoverability” requirements for French-language content on foreign streaming platforms was a factor in the recent breakdown in Canada-U.S. trade talks. But any future concessions by Ottawa on French-content rules would play into the PQ’s hands.
Three-quarters of francophone Quebeckers think French is threatened in their province, the highest proportion since at least 1992, according to the Confederation of Tomorrow Survey by Environics. Seven in 10 feel English Canadians consider francophones inferior; half feel anglophones still dominate them economically.
These sentiments are the building blocks of a future Yes win. A PQ government would exploit them to bolster support for sovereignty. Court decisions invalidating Bill 96’s constitutional amendments, Bill 21’s pre-emptive use of the notwithstanding clause or the abolition of the oath would make its task that much easier.
Whether the rest of the country cares is another matter. Mr. Couillard’s 2017 plea for renewed constitutional talks sought to head off a future sovereigntist comeback. The rest of Canada ignored him then. There are no signs that the rest of the country is any more open to the idea now.
If the recent past is any guide, English Canadians outside Quebec will be following the Alberta referendum campaign much more closely than the Quebec election campaign – even if the country’s future could be shaped far more by what happens east of the Ottawa River in October.
