An open letter

The constitutional Pandora’s Box has now been reopened. As a result of an “administrative agreement on health,” we are plunged back into the constitutional morass in which the ambiguity of words feeds the confusion of the mind.

Although the voters had no inkling of it in June, the country has set off once again on one of those marathons in which its unity will be at stake. There have been reassuring words from our leaders of all stripes. The recent agreement on health is merely an administrative document; it is not “constitutional.” Everyone is expected to applaud because we have succeeded in creating a federal-provincial agreement. Others see the agreement as an example to follow in other fields. Quebec sets the pattern, the model, for a whole series of future bilateral agreements: parental leave, day care, cities, student loans, telecommunications, as well as appointments to the Supreme Court, the Senate, the CRTC and the Bank of Canada (appointments that lie exclusively within federal jurisdiction). Finally, at the end, when it’s all over, Quebec will withdraw from almost all areas that give meaning to the existence of a country and value to citizenship. And it goes without saying, this will happen with the agreement and the blessing of the spineless Canadian government. We will have achieved the objectives of the Allaire Report , in deed if not in name.

People may accuse me of being alarmist, since the programs that we are prepared to transfer to Quebec are also available to other provinces, in the wake of the “Harper” clause. Pursued to its limit, the provinces will be able to appoint judges from their region to the Supreme Court. This guarantees wholesale fragmentation! Mr. Harper even tries to lure us into turning Canada into Belgium.

Quebec, we are told, also lays claims to a place on the international stage – even though this is a federal preserve. This might signal to other provinces that they ought to participate directly in international negotiations in areas of interest to them (UNESCO, ILO, WHO, FAO, UNPD, UNEP, SDC, HABITAT, the list is endless). Ultimately each province and territory will be able to withdraw from programs described as “national”,”centralist” and “levelling.” Every premier will be able to twin with a foreign head of state for a trade, political or cultural mission abroad. How long will it be before we have a Bush-Klein visit to secure oil contracts in Iraq?

Apparently you can play this way at remaking the country, just as you play with Lego or Meccano. You just have to put it all back in the box when you run out of ideas and mental fatigue sets in. At the end of the day, what will be left of Canada? A great pool of taxes and customs duties, the proceeds of which will be handed over instantly, unconditionally and automatically to each of the 10 provinces to pay for the programs they control.

With Asymmetrical Canada, the federal government will give up its ability to raise taxes for purposes that benefit all Canadians, a power it enjoys under the current constitution and has hitherto used for the benefit of every Canadian. Not, contrary to what is often said, out of a desire to crush the provinces, or an insatiable appetite to tell everyone what to do. If we have a health system that is reasonably comprehensive today, available and accessible with a comparable level of quality everywhere in Canada, free of charge, it is because at one time the government of Canada felt that this protection had become necessary in a society where equality of opportunity, including equality of access to a service like health care, should not depend primarily on the size of an individual’s bank account. The same is true of other social services, aid to postsecondary education, the Canada Council, scientific research and so forth.

When, in the days of Premier Duplessis, education could be too much of a good thing, or “research and writing” were for “dreamers,” the breath of fresh air came from the CBC and from the National Research Council. They helped to make it possible for Quebec to break the fetters that locked us into our rural, Catholic distinct society!

Critics will tell me that I am a prisoner of the past, and of Cité Libre. People tell me that Quebec has changed. Today’s Quebec, they say, is assertive and self-assured and knows no borders. How wonderful! However, immediately after crossing the border into Ontario or New Brunswick, this self-assured Quebec stiffens, clams up, digs in its heels. It is ready to defend every modicum of its authority like the medieval Crusaders in the Holy Land. This Quebec may insist on swashbuckling on the international stage, but it is still hypersensitive at home. Too often Quebec declares “The world’s our oyster, nothing is impossible” – unless it means sharing for the benefit of all Canadians, for achieving common goals or for ensuring the future services of a humanistic society where rights and freedoms are fundamentally protected by the rule of law. Quebecers turn their backs on a country like this, as if it were a foreign body, incompatible, even harmful.

Quebec thus proposes to withdraw from all the initiatives, programs and services that have fostered our solidarity as citizens, given meaning to our belonging, contributed to the building of this country and brought people together on the basis of an equality that respects differences of language and heritage. In doing this, Quebec tries to avoid validating any sense of national identity or rationale for being called Canadian, thus undermining the quality of life that characterizes Canadian society.

The project known as “asymmetrical federalism” contains within it a confusing trap. It gives birth to the hope that stripping the federal government of its powers will ultimately strengthen the capacity of Quebecers to develop in accordance with their own particular genius. The dynamic this creates, attractive as it may seem to some people, is a pernicious one. It gives legitimacy to the thesis that Quebec cannot be well served in Canada by Quebecers who are committed to defending Quebec’s values. This is fundamentally and utterly wrong.

While withdrawing from all federal initiatives and spending the money wherever they see fit, Quebecers are led to believe that they would always play an important and decisive role in Canada. They fail to realize that by pursuing this approach, Quebecers will progressively abdicate their right to participate in the government of this country. They will gradually forfeit the legitimacy of their claim to contribute to shaping its directions and societal choices. Once Quebec sits at the table of every international organization in “all the areas in which it is concerned,” who can maintain that Canada will still be able to be represented at the same table by another Quebecer? Once Quebec has withdrawn from all social programs, health care, social services, support for research, arts and culture, and telecommunications, once Quebec appoints all those who are to occupy seats reserved for francophones, the country will have become dysfunctional in its current framework, and Quebecers will start complaining that they are treated like second-class citizens.

And if all the provinces take this same approach, sanctioned by Mr. Harper, the country will quickly become ungovernable. Under this scheme, it will be imperative to review the status of MPs and senators and the way in which voting takes place in Parliament, reserving categories of votes for members from some provinces rather than others.

In fact, the country’s centre of gravity will shift, and what today it refuses to recognize in principle will be achieved by a circuitous route. Have you ever thought about how in the Meech Lake and Charlottetown accords, the federal spending power was adjusted to the needs of Quebec and to national objectives? With Meech, there was at least a requirement to respect the national objectives of programs. In Charlottetown, there was recognition of the principle of the preservation and development of the values articulated by Canada’s economic and social union. By contrast, in the agreement signed on September 15, the provinces remain free to spend money on programs other than health (which is what Quebec will do this year) and are answerable only to their own voters. If citizens are dissatisfied with the result, they would have to take the matter up with their provincial government. What an abdication of leadership!

Through the combined effect of administrative agreements and small steps, Quebec will have ultimately withdrawn from this country, a nation whose quality of life is in every respect the envy of the world. You need only listen to news from abroad to realize this. Can we be so sure this is a win-win solution? The political basis for demanding recognition of our status as francophones everywhere in Canada and for playing a commensurate role will have melted away. Canada will have become one big “administrative arrangement.”

Are we really justified in being so complacent without asking ourselves, “Is this the kind of country we want?”

Hon. Serge Joyal is Liberal Senator for the division of Kennebec, Quebec. This letter initially appeared in French in La Presse on October 22, 2004.

Asymmetry is a fundamental feature of federalism

A reply to Serge Joyal, by Benoît Pelletier

I read Senator Serge Joyal’s open letter on the subject of asymmetrical federalism published in La Presse on October 22, 2004. Senator Joyal’s analysis is entirely pessimistic, even a tad apocalyptic. Indeed, according to Senator Joyal, asymmetrical federalism risks weakening the Canadian federation, stripping powers away from Ottawa, jeopardizing Canadian unity and reopening a constitutional Pandora’s box. And this leaves Serge Joyal wondering, What will be left of Canada? Is this the kind of country we want?

This opinion is primarily based on Senator Joyal’s glorification of a system where the federal government holds a monopoly over the public interest and where it alone gives expression to what it means to be Canadian. Within this paradigm, the provinces are assigned the role of mere executors of major decisions reached by the federal government. Allowing the provinces to put forward other alternatives and visions based on their individual situations is perceived as being a threat to the system, a threat to the nation.

Senator Joyal’s premise of a centralist system, which obviously has very little to do with true federalism, distorts the discussion with respect to asymmetry. The question of asymmetry should instead be placed within the framework of a federal system characterized by an attempt to achieve an appropriate balance whereby provinces, through the expression of their differences, and whereby Quebec, through the affirmation of its specificity, are full-fledged participants and partners along with the federal government in the definition of our country.

Asymmetry is a genuine acknowledgement that both flexibility and adaptability are essential parts of the federal formula, in its universal and classical definition. Asymmetry is indicative of Canadian federalism’s being based on the fact that its constituent parts came together not only to combine their resources, values and ideals but also to defend, foster and promote their uniqueness and differences. In short, asymmetry is undeniably one of the fundamental and intrinsic features of federalism. This was the case in 1867 when the Canadian federation was founded, and it is clearly even more so today, at the start of the 21st century.

Nowadays, many countries are implementing tangible, viable and legitimate policies to accommodate their diversity. The United Kingdom, the very cradle of our constitutional traditions, has redefined itself along asymmetrical lines. Here in Canada, are we to deny the relevance of the need for flexibility, which is increasingly being recognized at the international level?

In Canadian history, asymmetry has been applied on numerous occasions and through various means without ever putting our federation at risk. There are actually several kinds of asymmetry in Canada. First, there is constitutional asymmetry, expressed through differences in legislative and executive powers assigned by the constitution to different provinces and territories. Indeed, our constitutional texts indicate that asymmetry was very much present in the minds of the founders of Canada, for whom the enhancement of our diversity and the multiplicity of realities that make up our country were the principal reasons for choosing the federal over the unitary model.

There is also financial asymmetry, which expresses itself through a range of measures by which monetary transfers are made to provinces and territories for reasons that may vary from province to province and from time to time. Equalization, which was the main topic of discussion during the first ministers’ meeting held in Ottawa a few days ago , is the most notable example of financial asymmetry in Canada.

The Supreme Court of Canada confirmed in the 1990 Sheldon case that there can also be legislative asymmetry, whereby a federal statute may be applied differently from one province to another, depending on the provinces’ respective values and diversities.

Finally, there is administrative asymmetry, by which federal and provincial governments agree to administer certain nationwide programs differently according to the provinces’ particular needs and aspirations. One need only think of the 1997 employment training agreements signed by the federal government with many provinces.

Yet according to Senator Joyal, these measures, especially the administrative asymmetries, should have sounded the death knell for Canada. However, such was not the case – quite the contrary. If Canada continues to exist today or, at the very least, if Quebec is still part of Canada, it is because of these asymmetrical processes. Asymmetry should not be viewed as a threat, but rather as a real and tangible gain for Canada. Far from undermining national unity, the adoption of asymmetrical measures enables federated entities to coexist in harmony with the central authority, thereby reducing needless tensions, counterproductive confrontations and even calls for secession. When the federal “hard-line” approach was applied, it did much to fuel separatist sentiment in Quebec. This intransigence drove thousands of Quebecers who were merely hoping for a reformed federation that would have better met their collective aspirations into the secessionist ranks.

Senator Joyal criticizes the present government of Quebec, which is strongly asserting its desire to retain its autonomy and leeway in fields falling under its exclusive jurisdiction. He actually insinuates that Quebec may opt out of everything that counts for Canada’s existence, out of all federal initiatives and all federal programs or services. He says that he is afraid that Quebecers may “abdicate” their right to shape this country. On the contrary, true federalism is the very foundation on which Quebec is basing its current policy. Quebecers would be more than happy to give new impetus to the evolution of Canadian federalism and to orient its development. If Quebec’s elite still tends to be parochial when it comes to Canada, as Senator Joyal maintains, it is not because it no longer believes in the future of this country, but rather because it does not identify with a certain uniform vision of Canada that makes little room for Quebec’s specificity and reduces the powers and the role of the provinces. This is precisely what the concept of asymmetrical federalism seeks to correct.

Contrary to what Senator Joyal implies, the asymmetrical nature of the health agreement signed in Ottawa in September bears no constitutional consequence and does not affect the distribution of powers between the two orders of government. It does not, in any way whatsoever, grant Quebec special status. Even if Quebec is the only province that availed itself of the benefits of the accord’s explicitly asymmetrical nature, all provinces and territories will gain from the flexibility it proposes and the precedent it establishes.

I agree, however, that the practice and use of asymmetry in Canada must remain compatible with the federative principle. Asymmetry cannot be limitless. It should not be of such an extent as to undermine the federative bond or deprive Canada of the consensus that keeps it together. Such asymmetry would serve no positive purpose. The real challenge is to find the appropriate balance between national concerns and the particular needs and aspirations of all regional units, through a political and constitutional structure that allows and encourages cooperation when it is deemed possible and beneficial. After all, the term asymmetrical federalism, as used in both the multilateral health accord and the Canada-Quebec agreement, reflects the important notion that asymmetry and federalism, in our particular context, are part and parcel of the same reality and should not be disassociated from each other.

This is why I believe not only that we must accommodate our inherent differences but also that we must elevate this practice to the level of “value” and “principle,” while preserving the integrity of the federal concept and the coherence of the federation as a whole. Henceforth, we must realize that all provinces and territories, Quebec included, must continue to show good faith, collaborate closely, pool their resources and share valuable information, and be committed to the development of Canada.

Moreover, it is clear that in choosing federalism Quebec agrees to participate in the great Canadian adventure. Quebec agrees to take part in the definition of the general common interest within a federal framework and in a federal spirit. The commitment of the government of Quebec to the revitalization of federalism is a strong expression of Quebec’s involvement in this endeavour. More and healthier intergovernmental cooperation, the forging of closer ties with all Canadians and the search for joint approaches within the Council of the Federation are all central elements in Quebec’s new approach.

Senator Joyal evokes a time when Quebec was in need of a “breath of fresh air.” Today, it is asymmetry that is breathing new life into our federation. Asymmetry must not be trivialized or wrongly portrayed as a destructive phenomenon. On the contrary, it has proved to be a very useful tool for developing federative relations while taking into account the particular needs of Quebec and the other provinces.

Has Canada become so fragile in Senator Joyal’s eyes that it can no longer afford to respect its intrinsic characteristics, demonstrate flexibility when appropriate or respect the very nature of the federative principle? I cannot imagine that this is the case!

Benoît Pelletier is Quebec’s Minister for Canadian Intergovernmental Affairs. This letter initially appeared in French in La Presse on October 28, 2004.