AREAS OF CONFLICT IN THE FIELD OF PUBLIC
LAW AND POLICYt
F. R. Scott*
The public law of Quebec, unlike the private law, derives its principles and
general content from the public law of England. By the Treaty of Paris in
1763 the sovereignty over [New France passed from the King of France to
the King of England; and automatically the law relating to the Crown, the
government and the political rights of citizens, became those of an English
colony. The legislative, executive and judicial organs, which were established
and developed after the cession, copied the paterns of the new mother country,
as formerly they had those of the old: in this sense -New France became New
England. But the underlying social institutions, such as the Church, the
seigneurial system and the family, with the French language, private law and
traditions, did not change .’ in this sense New France became Old France.
Thus Quebec offers an early example of British institutions of government
being first imposed upon and then accepted, by a non-British people, who in
other respects guarded jealously their own laws and customs.
Through the successive constitutional changes in Canada after 1763, such
as in 1792, 1841 and 1867, the public law of Quebec remained English in
character, though new institutions of government were introduced. These
new institutions, with few exceptions, were not peculiar to Quebec but follow-
ed the model set up also in other Canadian jurisdictions. Quebec was integrated
into a developing imperial system. Though French Canadian nationalism
steadily increased during the nineteenth century, the law of the constitution
takes little note of it. The B.N.A. Act of 1867 contains few special provisions
for Quebec. Outside sections 71-80, establishing the Quebec legislature, most
of which concern the Legislative Council, there are few references to the
province by name. Some of the clauses applicable to Quebec were for the
protection of the Protestant minority only, or were equally beneficial to
Catholic and Protestant; an example of the former is the special vote required
for changes in the representation from the Eastern Townships (sec. 80),
predominantly English in 1867; of the latter, the extending to Quebec of
the guaranteed separate school rights of Ontario (sec. 93-2) and the protection
for the two official languages (sec. 133). These rules, far from enlarging
autonomy in the province, all impose restrictions on it in the interest of
minority rights which are not exclusively French or Catholic.
*Macdonald Professor of Law, McGill University.
jThis article will appear as a chapter in a book on bi-culturalism in Canada, to be
edited by Mason Wade.
‘I leave aside the question as to whether the French private law was temporarily dis-
placed by the Royal Proclamation of 1763.
McGILL LAW JOURNAL
[Vol. 3
The most noticeable singling out of Quebec, as a province, in the Con-
stitution is to be found in the uniformity provisions of sections 94,2 where
Quebec is omitted, and, in section 98 which provides that judges in Quebec
courts must always be drawn from the Bar of Quebec. Section 94 does not
permit the Legislature of Quebec to delegate to Ottawa jurisdiction over
“property and civil rights” by the easy process which other provinces may
employ, and shows that the preservation of the French law was one of the
purposes of the Union of 1867 as it had been of all previous constitutions
since the Quebec Act of 1774. This is also the reason for the requirement
that judicial appointments in Quebec must be made from among the members
of the provincial Bar (sec. 98). Uike the guaranteed use of the English and
French languages, these provisions recognize the bicultural nature of Can-
ada. They do not add to provincial autonomy, however, but rather restrict it.
Nor do they prevent a transfer of jurisdiction, as for unemployment insurance
and old age pensions, by the amendment of the constitution. Cultural dif-
erences in 1867 were not expressed in greater legislative autonomy for
provinces; indeed, the dangers to unity which they entailed were one of the
reasons for establishing a strong government at Ottawa with the residue of
power in the hands of the central authorities.
In the basic distribution of legislative powers under sections 91-92 of the
constitution, there is no mention of Quebec: the original legislatures are all
given the same powers. Preservation of the two cultures was a principle on
which the Canadian nation was built, but the constitution did not create in
Quebec a special kind of “state” to which was entrusted an exclusive guard-
ianship over French culture. On the contrary, minority rights and provincial
autonomy are kept quite distinct, and autonomy is frequently subordinated
to the higher value of minority rights. This is shown by the fact that Ottawa
is specifically given a power to legislate on education in certain circum-
stances, in Quebec as elsewhere, for the protection of minorities (sec. 93-4),
and by the federal veto power over provincial laws (sec. 90), which was
intended to operate as a control over any legislature abusing its power. As
Cartier himself said during the Confederation debates, “I would recommend
it (disallowance) myself in case of injustice”. 3
The superstructure of the constitution, however, is one thing; the iiving
forces within peoples are another. The States of the American Union, under
its constitution, are treated with even more equality among themselves than
are Canadian provinces, yet the deep-seated differences between (North and
South are still patent though not based on language and religion, and produced
a doctrine of nullification and claims to secession which could not be resolved
2This section, which has never been used, enabled provinces to abandon jurisdiction
to the federal Parliament by consent.
3 Confederation Debates, pp. 407-8. See also Scott, F. R., “Dominion Jurisdiction over
Human Rights and Fundamental Freedoms,” 27 Canadian Bar Review at p. 530.
No. 1]
PUBLIC LAW AND POLICY
by judicial process. From 1867 Quebec became an autonomous community
in the sense in which any state in a federation is autonomous, namely, it could
exercise its legislative powers as it chose in any way that did not conflict with
the law of the constitution. In particular, its jurisdiction over “property and
civil rights” which it shares with other provinces, gave it a wide field for self-
expression, particularly as its content was greatly expanded through judicial
interpretation. Over the course of the years its provincial legislation has
changed certain parts of the public law in Quebec in ways that differ from
the direction taken in other parts of Canada, though a basic similarity
remains. More important even than the differences which such local legisla-
tion produces –
are
the attitudes and feelings in the province about “provincial autonomy”; here
the opinions expressed with increasing conviction in Quebec often stand in
strong contrast to those prevalent elsewhere. While opinions are not law,
they tend to produce interpretations of law and certainly produce conflict in
the judicial as well as in the political sphere.
and Quebec is not unique in this form of regionalism –
Some of these contrasting views will now be analysed. But while the
emphasis is on differences of outlook, it must be remembered that not all
French-Canadians think alike and still less do all other Canadians. Quebec
is by no means the only defender of provincial autonomy, though under
Premier Maurice 0Duplessis, as often in the past, this has been a leading
characteristic of its policy. Hence cross-currents blunt the edges of opinion
which, if too sharpened, might make impossible that degree of ethnic co-oper-
ation without which Canadian federalism could not survive. The areas of con-
flict here outlined must be seen against a much wider background of day-to-day
collaboration in almost every phase of Canadian activity.
STATUTE OR COMPACT?
A primary question, still unresolved by Canadian publicists, is this:
What is the nature of the British North America Act of 1867? Is it simply
a statute of the British Parliament, distributing powers afresh among Can-
adian governments through the exercise of an ancient imperial sovereignty?
Or is it a solemn compact or treaty not only between provinces but between
the French and English races in Canada? On the answer given this question
many others will inevitably depend.
The view that the constitution is a statute –
a view which commands wide
though not universal support in English Canada –
sees all the present
provinces as deriving their governmental powers from a superior legislative
grant which is equally binding upon federal Parliament and provincial
legislatures. The authority of the Parliament at Westminster, which establish-
ed the present system of government, is still used to change its fundamental
provisions, and for the amendments this Parliament alone can make, no
provincial consent is legally necessary, however politically wise it may be to
McGILL LAW JOURNAL
[Vol. 3
secure it. The law of the constitution does not give any province, or any
number of them, a veto on changes requested by the federal Parliament.
Moreover, with this approach “provincial autonomy” is no more a chief
purpose of Confederation than federal autonomy, or decentralisation than
centralisation; the BJV.A. Act was an “Act for the Union of provinces, not
for disunion, and while a federal form of government was adopted, the prov-
inces, in the words of the BW.A. Act, “shall form and be one Dominion under
the name of Canada” (sec. 3).
On this understanding of the B.N.A. :Act, the struggle of the French-
Canadian minority for its due share of status and power in Canada and for
the recognition of its fundamental rights must express itself through the
Parliament of Canada, as well as through the Quebec and other provincial
governments, Federal institutions, as well as provincial ones, are its proper
outlet. Quebec is and doubtless will remain a “homeland” to all French
Canadians, except perhaps the Acadians, but this is an historic fact rather
than a constitutional rule. All Canada is the homeland for all Canadians.
Canada is thus two cultures but not two states; a federal system and not a
dyarchy. The ten provinces are equal in status and French culture, while
geographically centred in Quebec, radiates outward through various social
and political channels but not through any special governmental institutions.
The government of Quebec, though controlled by French Canadians, is neither
French nor Catholic, being designed for all its inhabitants, 20% of whom
are not of French origin. ‘Dans notre pays il n’existe pas de religion de l’Etat,”
says Mr. Justice Taschereau.4 Indeed, since all government in Canada is
carried on in the name of the Crown, and the Queen must by law be in
communion with the Church of England, Quebec has a Protestant as formal
head of the government, whatever may be the religion of the Premier and
Cabinet.
If the B.N.A. Act is viewed as a compact or treaty rather than a statute
an opinion almost official in Quebec5 –
at once different aspects of the
federal relationship are stressed. Ottawa becomes, in a very real sense, the
“creature” of the provinces,6 who agreed in 1867 to set up a new form of
government. The creators, being equal in rights, would seem to have an equal
voice in proposing and approving changes in the constitution. On this
argument every province has –
a veto power over amend-
ments. Though it is true that some provinces were established or admitted
after Confederation, and cannot strictly be considered as parties to the compact,
and though Quebec and Ontario were united in a single Province of Canada
when the compact was formed, the basic fact of provincial pre-existence
or should have –
4 1n Chaput v. Romain, [1955] S.C.R. 834 at p. 840.
51t has been written in to the preamble of the Quebec statute 2-3 Eliz. 11, cap. 17.
6This view has also English-Canadian support: see e.g. Watson, S. J., The Powers of
Canadian Parliaments (1880) p. 51, O’Sullivan, D. A., A Manual of Government in
Canada (1879) p. 21.
No. 1 ]
PUBLIC LAW AND POLICY
remains in so far as Quebec opinion is concerned. French Canada had its
separate existence as New France until 1763, as Lower Canada from 1792-
1841, and was recognised as a distinct entity by the tacit federalism that
was practised under the Union government of the Province of Canada from
1841-1867. Its sense of identity survives and pervades every form of con-
stitution. Lower Canada also had its own delegation, separate from that of
Ontario and composed of both French and English members, at the Quebec
and London Conferences preceding Confederation. These facts lend special
strength to the compact theory in Quebec.
Some recent thinking in Quebec goes far beyond the compact theory and
defines Confederation as a fundamental agreement, not merely between
provinces, but between the two races, French and English. This notion, like
the compact theory, opens up new lines of constitutional analysis but leads to
quite different conclusions. Not unnaturally, among all the influences that
shaped the constitution, the French-English relationship stands out most
vividly in the Quebec mind. There seems no straining of history in calling the
eventual agreement a treaty between races, even though the text of the
B.N.A. Act mentions no race at all except the Indian. On this approach there
exists a dualism in the constitution reflecting a predominant fact of Canadian
life, and the government of Quebec at once appears as a “French” and
“Catholic” government, a champion of the race, set over against the English-
Protestant government of Ottawa. Symbolisation of the racial and religious
struggle takes place on the constitutional level, though the language of the
law is neutral. The treaty-between-races theory explains the importance for
Quebec of having its own flag, as a sign of nationhood, and its own anthem –
0 Canada! – whose French version hymns the traditions of Old France
rather than the aspirations of the new federal state stretching from sea to sea.
If the races in Canada are equal, so the theory goes, then the governments
representing the races should be equal. Therefore Quebec is the equal of
Ottawa and not just one part of a larger whole. Such is the easy transition
from the aspirations of the people to the supposed law of the constitution.
This concentration on the provincial government as defender and sole re-
presentative of Quebec’s rights, as distinct from merely regarding the province
as a focus of culture, is something relatively new in Quebec though the ideas
being defended are as old as the cession of 1763. The degree to which these
ideas have penetrated into the realms of constitutional theory can be seen in
the following typical statements. One is from a speech of the Honorable
Antonio Barrette, Minister of Labour in Quebec, who said in May, 1955:T
“There is now such a thing as a French-Canadian nation. Not only have we ac-
complished the miracle of survival, but we have reached the point where we have
our own government, our own religion, our own language, our own culture, our
own universities and our own literature.
TQuoted by J. Harvey Perry, “What Price Provincial Autonomy”, Can. Journal of
Economics and Political Science Vol. 21 at p. 445.
McGILL LAW JOURNAL
[Vol. 3
The acts of heroism of Quebec’s early settlers were beginning to pay off in a tangible
.nanrer.
We have reconquered our autonomy and we are now well on the way to retake
:’_ossession of our taxation rights which are at the very basis of our existence.
Without our power to tax, our freedom of legislation would be a sheer illusion.”
Another is from the recommendations of the Tremblay Commission on Con-
stitutional Problems, the second of which states:
“2. With regard to French-Canadian culture, the Province of Quebec assumes
alone the responsibilities which the other provinces jointly assume with regard to
Anglo-Canadian culture.”S
A third is from an article by a member of the Bar of Quebec, M. Philippe
Ferland, Q.C. published in Thimis, the law journal of the University of
Montrial.9 Writing of the meeting of Prime Minister St. Laurent and
Premier Puplessis in “neutral” Montreal on October 5, 1954, to discuss a
new taxation agreement, M. Ferland said:
“Nous sommes ramenis au point de dipart, j l’origine de la Confidration. Deux
parties sont en presence: l’Etat canadien-franvais et l’Etat canadien.
Pour la premiere fois depuis 1867, ces deux Etats se rencontrent seul A seul. Le
dialogue doit s’engager entre les deux seules parties qui n’ont ni negocier ni signer:
Ouibec et Ottawa. La discussion doit s’engager entre les viritables d~ligu~s qui se
font face: l’Etat f~dral, reprisentant de l’union legislative, l’Etat provincial du
Quebec, repr~sentant le peuple qui veut refaire ses chances de survie, celui des
Canadiens-francais. Deux Etats, deux conceptions, deux peuples.”
What would surprise the Canadian from..’Nova Scotia or Alberta who might
read this last statement (assuming he understood French), is the notion
that :Ottawa speaks for all the other “English” provinces as well as for itself,
and that because the population of Quebec is predominantly French and
Catholic, all provinces except Quebec disappear leaving only two “states” on
the Canadian scene. Yet this has become a deeply felt reality in Quebec, where
the idea that federalism in Canada exists solely to guarantee the survival of
French culture, and that without it Canada would be a unitary state, finds
ready acceptance. The regional loyalty of the Maritimes, for example, or the
separatism inherent in geography, which imposed federalism on Canada quite
regardless of Quebec feeling, are factors to which no attention is paid.
The “dual state” theory is quite inconsistent with the compact theory,
since the latter claims only that all provinces are equal sovereign entities
whose rights cannot be changed without their consent, whereas the former
denies
the existence or importance of all provinces save Quebec. The
attractiveness of the theory for Quebec lies in its attribution of equal status
to the smaller of the two Canadian communities: it thus plays the same role
as “Dominion status” within the Commonwealth and “sovereignty of states”
within the international order. That it is revolutionary in its implications is
obvious. It could not be worked out to its logical conclusions without totally
destroying the present constitution of Canada. Already certain extremists in
Quebec have no hesitation in dismissing all French-speaking federal Members
of Parliament from Quebec (though duly elected) as vendus, as indeed by
8Summary of the Report, 1956, p. 18.
9No. 14 Dec. 1954, p. 105 at p. 109.
No. 1]
PUBLIC LAW AND POLICY
definition they must be for associating with “the other side”. Even though
Le Devoir, traditional defender of Quebec nationalism, may protest at the
injustice to Quebec of having too few French Canadians in the federal civil
service, any Quebecer who takes an Ottawa post is likely to suffer the accusa-
tion of having lost his essential French character.
Unless Quebec is to become an independent state outside Confederation,
which virtually no one in Quebec seems to desire, the limitation of legislative
and executive powers imposed by the present constitution on the Quebec
government would seem to make it wholly inadequate as the exclusive de-
fender of French culture, even if all French minorities in other provinces are
disregarded. The elevation of this government as the sole champion of the
race has therefore grave dangers for that race: it might have the unexpected
effect of imprisoning the .vital energies of the French-Canadian people. A
“state” such as a Canadian province, deprived by the constitution of tontrol
of money and banking, foreign and inter-provincial trade, transportation and
tele-communications (including radio and television), the armed forces and
the criminal law, whose taxing powers are limited and whose laws can be
vetoed, is not in a position to control all the important areas in which a culture
flourishes, still less to provide a secure economic base for that culture. Besides
these legislative limitations, the constitution gives to the government at
Ottawa the appointment of all the Senators from Quebec, all the Superior
Court and Court of Appeal judges in Quebec, and the Lieutenant-Governor
of Quebec, while the Parliament of Canada can declare any public work in
Quebec to be for the “general advantage of Canada” and thus gain control
over it.
These provisions were not aimed at Quebec, but apply to all provinces
equally; they are part of the traditional fabric of Canadian federalism. The
Fathers of Confederation, witnessing the American civil war, drew therefore
the lesson that an exaggerated provincial autonomy could spell disaster, and
took steps to avoid any such danger in the Canadian constitution. There is
little in Canadian history to suggest that they were mistaken in this view.
The Quebec nationalist is far from being alone in his dislike of federal author-
ity. Before Confederation was a year old, (Nova Scotia (not Quebec) was
endeavouring to secede entirely; secessionist movements were developing
on the prairies during the 1930’s; the Social Credit Party’s attempts to
secure financial autonomy for Alberta under Premier Aberhart fully match
the similar efforts of Mr. Duplessis in Quebec. The Canadian nation, in de-
mographic shape still a long ribbon of population broken at several points,
has difficulty holding itself together against strong centrifugal forces at all
times. This is the reason why Canadian federalism contains the unitary
features, already referred to, which mark it off from other systems, more
typically federal.
McGILL LAW JOURNAL
[Vol. 3
Behind the rather outspoken claims of supporters of the compact and racial
theories of Confederation lies a natural desire for survival and expansion
that is constantly seeking new symbols to express its aspirations. The French
Canadian is at home in Quebec. So is the English Canadian in the province,
though some other minorities are perhaps not so secure. The French Can-
adian wants to feel as much at home when he lives in Ontario; that is, he
wants his own language, his own school, his church and parish, and his
French Canadian way of life. To some extent he has achieved this in districts
adjacent to Quebec. But his minorities farther from the homeland have not
achieved it, and the English-speaking inhabitants of other provinces are
surprised, if not startled, to discover that they are expected to adapt their
local laws (e.g. as to separate schools) so as to make possible the steady
development of a French-speaking cultural minority as an island colony in the
midst of their already heterogeneous populations. Meeting this resistance, the
French minorites look to Quebec for help, which in turn reacts with stronger
claims. The fact that an exaggerated provincial autonomy may actually
weaken the outside minorities by subjecting them still further to local major-
ities and depriving them of the protection of Ottawa does not deter the
nationalists in Quebec. ,An “autonomous” Quebec is a fortress in a dangerous
land, without which the struggle for survival seems hopeless. Thus a strong
Quebec government seems necessary to pry loose more freedom for its min-
orities outside as well as within, using at the same time provincial autonomy,
influence at Ottawa, and pressures of every kind to achieve the single purpose.
The conflicting interpretations of the constitution as between statute and
compact, or as racial treaty, are phases of this wider engagement. For this
reason legal argument is of little avail in changing opinions, and proofs that
the B.N.A. Act is or is not founded on a compact or treaty do not go to the
real issue, which is one of power rather than of law.
NEW F ,NCTIONS OF GOVERNMENT
While debates about the nature of the Canadian constitution continue,
new functions of government arise to alter the basic foundations of federal-
provincial relations. These new functions create new conflicts of opinion.
The provision of social services, and the maintenance of economic equilibrium,
make demands upon Canadian governments which the original constitution
was ill-equipped to fulfill. Economic equilibrium and high employment are
inevitably federal responsibilities, for no province has sufficient control over
taxation or finance to be capable of maintaining them. The Social Credit
government’s record in Alberta between 1935-1940 exposed this provincial
weakness, both in fact and in law. Social legislation, about which Quebec is
deeply concerned, is more easily conceived of in provincial terms in so far as
administration goes, and even the financing of minor services can be borne by
provinces, but the larger social insurances affecting unemployment, health
and old age are too costly for most provincial budgets without federal part-
No. 1 ]_
PUBLIC LAWAND POLICY
icipation. Already unemployment insurance and old age pensions have been
attributed to Ottawa by constitutional amendment. Other provincial services
are developing so fast that they too are demanding federal aid. University
education is a case in point. National economic policies and social service
demands tend toward centralization, no matter what interpretations the courts
place upon the constitution or what arguments are brought forward for
provincial autonomy. Hence Quebec’s fears for the future of her distinctive
way of life are increased, and the conflicts of opinion which are always
present in the federal system are exacerbated.
The most powerful centripetal forces are created by the fundamental
dynamic in Canadian society –
industrialisation. This is the real enemy to
provincial autonomy as conceived in racial or any other terms, and the most
serious challenge which French Canada must face – more dangerous than
the English majority in Canada, also carried along by the forces of change, or
than “iOttamwa” or any other external symbolisation of the “threat to Quebec”.
Industrialisation and technical change are sweeping Quebec as never before in
her history, for the rugged Laurentian country which for so long maintained
the near-subsistence agriculture on which Old France could survive in North
America, is now found to be rich with minerals and resources which an
expanding economy requires for its voracious mills and factories. The re-
motest regions of the province are being brought under exploration and
development. Great amounts of capital are needed that few French Canadians
can provide, and the large private corporations which, in a capitalist society,
are the chief instruments used in development, relentlessly transform the
ancient pattern of Quebec life, introduce new centres of authority, and tie the
province to world markets. The movement from farm to factory is accentuated,
despite Quebec’s belief in “colonisation” of marginal lands; immigrant labour
can for the first time be absorbed in French communities; international trade
unions reach out to protect workers who feel themselves to be unsympathet-
ically treated even by their own government. Even the Catholic trade unions,
originally designed to protect Quebec, have affiliated with the single Canadian
Labour Congress. The cultural curtain which history and institutional policy
have placed around Quebec is brushed aside at every point.
It is ironic that the man who most invokes the political appeal of provincial
autonomy, Premier Maurice Duplessis, is the one who has most encouraged
the very process which is undermining his own philosophy. Being conservative
in background and political outlook, he promotes private enterprise in its
purest forms, so that while it is true, as Le Devoir said, 0 that “the only
government over which the people of Quebec exercise absolute control is the
Quebec Government”, the Quebec population has very little control over the
policies of the financiers and entrepreneurs who are shaping the future rela-
tionships of Quebec to Canada and to the outside world. Corporate under-
lOQuoted and translated in Montreal Gazette, 31 March 1955.
McGILL LAW JOURNAL
[Vol. 3
takings of the modern type are themselves a form of government, and to use
the words of an American constitutional authority, “corporations,
in the
process of conducting their operations in a number of states, render control
by any state extremely difficult, leaving the federal government the only
potentially effective master”.” Even Ottawa seems powerless in face of the
general trend. The forces threatening Quebec are international in scope, and
battles over provincial status seem peculiarly beside the point.
It is not only economic forces, however, which play this formative role in
the federal system. Canada’s international obligations, and her essential part
in the defence system of the western world, also change the basis of federalism.
During World War II, Canada became virtually a unitary state. Emergency
conditions necessitated a high degree of centralisation. That this did not
permanently destroylthe autonomy of provinces is evidenced by their present
strength. But some after-effects of war show no signs of disappearing. One
is the continuing need to spend large sums on defence, which necessitates a
high level of federal taxation. Both in law and in policy defence demands have
priority over provincial claims. Money for this programme must be obtained
from taxation spread over the whole country, including Quebec. In addition,
Canadian industry.must be available as needed for defence supplies; this has
necessitated federal legislation under which very stringent controls can be
imposed by Ottawa upon sources of production. Each individual industry
in a province forms part of the national defence potential. No industry falls
exclusively within the jurisdiction of the province in which it is situated,
though “property and civil rights” are provincial matters under the con-
stitution. Given nothing worse than a cold war, the defence power leaves
room for provincial freedom, but no concession can be made to provincial
governments which threaten defence planning for the security of Canada and
her western allies. The conflicts that occur in the field of public law in
Canada, and the constant attempt to find new solutions to the financial
problems facing provincial governments, are carried on under the over-
riding necessity of facing the realities of the international situation.
FISCAL POLICY AND PROVINCIAL AJTONOMY
It may be admitted that provincial autonomy must have a sound financial
base or it is an empty formula. In insisting on this point, Quebec voices a
widespread belief. With federal taxes geared to the double requirement of
equilibrium economics and defence spending, the field of taxation is so largely
occupied by the federal government that provincial legislatures are hard
pressed to find the additional funds needed for their expanding social services.
Under the constitution they are denied the right to levy any but direct taxes.
All provinces other than Quebec –
accepted
Ottawa’s solution to this problem up to 1957, in the form of five-year tax
and, for a time, Ontario –
I1Swisher, The Growth of Constitutional Power in the United States, p. 208.
No. 1]
PUBLIC LAW AND POLICY
rental agreements by which, in return for their withdrawal from the income
and corporation tax fields, they received additional grants from the federal
treasury on formulae equally available to all. Quebec refused to enter these
arrangements after 1945, though she was a party to the War-Time Tax
Agreements, 1941-45. Mr. Duplessis has consistently interpreted his refusal
as a defence of the fundamental rights of Quebec, and Ottawa’s taxation
policies as an attack upon those rights. The following extracts from a speech
he delivered at Rouyn, P.Q., on August 21, 1955,12 state his position clearly
enough:
The Premier said the efforts of the Government were limited by the amount of taxes
. . “To do what is required to meet the growing needs of our province
collected.
and our people, additional funds will be required…”
“As far as I am concerned,” the Premier asserted, “I don’t know how many more
years Providence will allow me to continue as the head of the Government. I know
it would be simple for me to take the easy way out and sell the rights of Quebec
for a few million dollars. It would be easy but it would not be honourable.
I have said before and I say it again,” declared the Premier, “that I will never
betray the province of Quebec whether the price is a few pieces of silver or millions
of dollars . . .”
“We must have additional funds to provide our schools with the educational facil-
ities to which they are entitled; we must have financial independence to build our
own hospitals and to provide the people of this province with the social services
which they have come to expect from their government.”
Stated in these general terms, these propositions have evoked almost
universal support in Quebec and a good deal outside. The problem is to know
whether in fact the rejected taxation agreements, or others which may re-
place them, are the real danger to autonomy which they are painted to be.
Sharp conflicts of opinion between Quebec and the rest of Canada have arisen
on this point. Other provinces find it difficult to believe that a French-
Canadian Prime Minister of Canada, or the Quebec members of the Senate
and. House of Commons, would have approved the tax arrangements had they
contained a betrayal of Quebec’s rights. The general view outside Quebec
seems to be that some such form of financial co-operation between all Can-
adian governments is essential for the economic well-being of the whole
country, and that any province attempting to “go it alone” will not only injure
its own people but others as well. The smaller and poorer provinces in part-
icular want a federal policy which redistributes national income through
federal support of social insurances and direct subsidies to provincial govern-
ments. The opposition of so powerful a province as Quebec could mean the
collapse of national plans and a general free-for-all in which existing inequal-
ities between regions and classes would be greatly accentuated.
From the Quebec point of view, however, the problem is not at bottom
economic. Or rather, its economic aspects are not as important as its cultural
implications. To be subsidised is to be in some degree dependent. The
donor is psychologically and politically stronger than the recipient of the
gift; hence if Quebec accepts money from Ottawa, the dual-state theory of
12As reported in Montreal Gazette, 23 August, 1955.
McGILL LAW JOURNAL
[Vol 3
Canadian government is difficult to maintain. In receiving subsidies the people
of Quebec learn to look outside their borders for assistance; their local
loyalty is weakened; they become less defensive of their special position.
If it is pointed out that subsidies have always existed in the constitution,
and that they were an integral part of the agreement of 1867, obviously not
destructive of provincial autonomy, the reply is that the original provinces
were weak and undeveloped, not obliged to assume the wide functions of
their present government, and not faced with the challenge to autonomy
which now threatens them. The very strength of the present centripetal forces
justifies further measures for safeguarding
‘Even
though some ‘efficiency”, from the purely economic point of view, be lost,
the value of autonomy, particularly for Quebec, far outweighs this cost.?8
local self-government.
Even deeper motives can be sensed in Quebec’s hesitancy to commit her-
self to certain forms of tax centralisation. Long range fears, as much as
present dangers, compel caution. A particular scheme, such as the Tax
Rental Agreements, on its surface may appear fair and reasonable. It avoids
dual taxation, supports national fiscal policy, and effects a redistribution of
wealth toward the poorer provinces. What can be said against it? The answer
often given in Quebec is that it is the beginning of a road, the end of which
no one can foresee. Today there may be nothing but benefit in the scheme,
tomorrow the strength of Quebec may be undermined beyond repair. Such is
the line of thought which has produced a refusal to co-operate in national
fiscal plans even when this refusal has cost Quebec millions of dollars of”
revenue. And since fiscal needs constantly increase, the government of Quebec
chooses to impose dual income taxation and to demand that the federal govern-
ment withdraw from direct taxation fields which the province wishes to enter.
Unless Ottawa moves out there is little room for Quebec to move in, since
under the law a province has no priority in the exercise of the direct taxation
to which it is restricted. 4 But if the federal government is obliged to with-
draw from a given field of taxation at provincial request, then not only does
national fiscal policy go by the board but a doctrine of nullification or veto
by provinces over Parliament becomes part of Canadian constitutional practice,
regardless of what the law may be. It was on this point that Mr. St. Laurent
stood firm when Mr. Duplessis first imposed his provincial income tax in
1954, and on which the Quebec government eventually gave way by removing
the claim to priority from the statute. 5
In every federal state the division of taxing powers and public revenues
presents grave difficulties. In the (United States, Australia and Switzerland,
13This danger is not felt exclusively in Quebec: see e.g. Augus, H. F., “Two Re-
strictions on Provincial Autonomy”, Can. Journal of Economics and Political Science,
Vol. 21, p. 445.
14 See discussion in Scott, F. R., “The Constitutional Background of Taxation Agree-
ments”, 2 McGill Law Journal, p. 1.
15See amendment in 1955 Quebec Statutes c. 15.
No. 1 ]
PUBLIC LAW AND POLICY
as well as in Canada where they are part of the original law of the con-
stitution, subsidies to the states and cantons have had to be instituted. 8 Yet
these countries have remained federal in form, though the central authority
has grown stronger. Quebec’s claim for fiscal autonomy is by no means
peculiar to herself; it is echoed by other Canadian provinces and in other
federations. But in her case it takes on added strength and colour because it
becomes part of the general defense of a minority culture.
EDUCATIONAL CONFLICTS
Some of the most acute conflicts in the field of public law have occurred
over the educational provisions of the Canadian constitution. The story is a
long one, reaching back to the vain attempts of the English not long after
the cession to establish the Royal Institution for the Advancement of Learning
as a general educational system for the province. Against this unifying
tendency Quebec stood firm, claiming the right to separate French parochial
schools. In the course of the constitutional evolution since those days Canada
has achieved a peculiar school system which varies from province to province
and which ranges in theory from the complete separation of Protestant and
Catholic schools, as in Quebec, to the notion of the single, undenominational
state-supported public school, as in British Columbia. In between are several
variations on these two themes, with varying types of separate schools in
Ontario, Saskatchewan, Alberta and the -Northwest Territories. Newfound-
land has added a new note with four kinds of religious schools receiving
state support: Catholic, Anglican, United Church and Salvation Army. Need-
less to say, the Canadian constitution does not contain a fundamental rule
barring “an establishment of religion”, as in the opening clause of the First
Amendment to the United States constitution.
The conflicts that arise in this area are -numerous and stem from different
motives. They are by no means exclusively disagreements between French-
Catholics and English-Protestants. Sometimes English-speaking Catholics are
ranged against French-speaking co-religionists, as in the lawsuit which tested
the validity of Ontario’s attempt to restrict the use of French as the language
of instruction.17 Sometimes two different churches are allied in their opposi-
tion to a school law, as in the attack upon the Manitoba School Act of 1890
when Anglicans and Catholics joined forces3 s The Jewish communities in
Quebec have difficulty in fitting themselves into a system divided into two
Christian groups, and some Doukhobors refuse to send their children to any
school, resulting (in British Columbia) in the forceful separation of children
from parents. Ontario law still has provision for separate schools for “coloured
16Wheare, Federal Government, 3rd. ed. pp. 115.6.
lTOttawa Separate. Schools v. Mackell, [1917] A.C. 62.
l8 Winnipeg v. Barret, Winnipeg v. Logan: [1892] A.C. 445.
McGILL LAW JOURNAL
[Vol. 3
people”, though the last of such schools ceased to exist in 1891 9 The heter-
ogeneity of the Canadian population, which steadily increases as new immi-
grants arrive, produces many claims on provincial governments for educa-
tional privileges.
From the point of view of Quebec, however, there is one claim which has
priority over all others, and that is the right of the French-Canadian minority
in all other provinces to possess as favourable a system of separate schools
as exists for both Catholics and Protestants in Quebec. Spokesmen for
Quebec take justifiable pride in pointing out the favourable situation of the
Protestant minority in the province, and claim that no other provincial
government treats the minority so well. They contend that the principle of
separate schools, written into Section 93 of the constitution, while not
universally extended in the early days to all Canada, should be admitted in
every province as the French-speaking population grows. They have been
bitterly disappointed in certain leading court decisions which have denied their
claims, notably with regard to separate schools in New Brunswick and Man-
itoba, to the use of the French language in Ontario, and to the distribution
of school funds in Ontario. They feel aggrieved that British Columbia does
not accept their views. Gerard Filion, Editor of Le Devoir, lists the inequal-
ities in the school system as one of the great causes of friction between the
two races, and he adds somewhat optimistically :20
“On the day when every French-Canadian, wherever he may be in the country,
enjoys the same advantages and the same privileges as his English-speaking com-
patriot, the last obstacle to the unity of the country will have disappeared.”
The opponents of this view employ much the same argument as can be
heard in the United States against the claims of parochial schools to a share
of tax revenues, though in Canada there is no constitutional barrier to such
payments. The need to develop a common sense of citizenship, and to over-
come the racial and religious hatreds that too often follow segragation, exists
in Canada as well as in the United States. Groups that feel unable to use
state schools on conscientious grounds are at liberty to set up and pay for
private schools. A belief in the advisability of the complete separation of church
and state is firmly held in many parts of Canada, though not written into the
fundamental law. The conflict of ideas here is one of principle, not easy to
resolve since there is no common point of departure. In the result, Canada
remains partly committed to separate schools, and partly not.
The differences of view over schools reach out to other fields of education.
Universities in Canada have traditionally been established or regulated by
provincial legislation. Some have, like McGill, a Royal Charter antedating
Confederation; others, like the University of Montreal, have both a civil
and a pontifical charter. All are having difficulty in securing the necessary
finances. In 1951 the federal government, which had long been making special
191nformation supplied by the Ontario Dept. of Education.
201n Saturday Night, Nov. 24, 1954.
No. 1]
PUBLIC LAW AND POLICY
grants for particular forms of university research, adopted a recommendation
of the Massey Commission and embarked upon a scheme of subsidisation for
all universities based on a formula equally applied in all the provinces. In
Quebec, a special committee appointed by the Quebec government supervised
the distribution of the funds. All Quebec universities at first accepted the plan,
but after one year the Quebec government refused to participate further and
declared that .Ottawa’s subsidies were an invasion of the province’s ex-
clusive jurisdiction over education. As no other province took this view, the
result has been that all universities save those in Quebec have continued to
receive federal funds. Meanwhile the Quebec government has instituted pay-
ments on a year to year basis to replace those lost by its own institutions. This
additional drain on its resources is urged as a further argument for exclusive
use of the direct tax fields .allotted to it under the constitution.
The same dispute goes beyond school and university into the realm of
culture generally. Is “culture” a provincial matter? The very idea seems to
denude the word of any meaningful content, yet many defenders of provincial
autonomy claim that it is included by analogy in the term “education”, over
which provinces have the main jurisdiction. It would follow that Ottawa
should not assist at all in the development of the arts and sciences, or in
adult education. Yet radio and television broadcasting have been ascribed to
federal jurisdiction by legal interpretation of the constitution, the federal
responsibility for the whole Northwest Territories and for Canada’s 160,000
Indians as well as its need for trained personnel in every branch of govern-
ment, as patent facts. Legally there is no invasion of any legislative field in a
province if the federal Crown, legal proprietor of public funds, offers a
subsidy to any institution or group engaged in educational or cultural work,
since the making of gifts is not the same as enacting laws.2 ‘ Moreover, as
the Massey Report said:
“If the Federal Government is to renounce its right to associate itself with other
social groups, public and private, in the general education of Canadian citizens,
it denies its intellectual and moral purpose, the complete conception of the common
good is lost, and Canada, as such, becomes a materialistic society.”
Despite these facts and this argument, opposition from Quebec is credited
with the prevention of the establishment of the Canada Council, as recommend-
ed by the Massey Report, thus leaving Canada without any Arts Council
or any iNational Commission for UNESCO. 22 Meanwhile Canadian artists
and writers must rely on the generous assistance of American Foundations
and such help as may come from provincial institutions (among which the
Quebec government is most generous) supplemented by federal aid in the
form of radio and television contracts or fellowships paid out of blocked
European currencies. This Kulturkampf has its casualties in fewer creative
artists and lost cultural opportunities.
2ICf. note (14) above.
22On November 12, 1956, Mr. St. Laurent announced ithat his government intended
to establish the Council.
McGILL LAW JOURNAL
[Vol. 3
LANGUAGE DISPUTES
The law of the Canadian constitution recognizes English and French as
the two official languages of the ‘country, within certain limits. They are on
an equal footing as regards their use in the Parliament of Canada, in federal
statutes, and in federal courts. Since these statutes and courts may operate
anywhere in the country, every province is in this sense bilingual. But in
provincial legislatures, statutes and courts outside Quebec, English is the sole
official language. This results from the wording of section 133 of the B.N.A.
Act, reading as follows:
“133. Either the English or the French Language may be used by any Person in
the Debates of the Houses of the Parliament of Canada and of the Houses of the
Legislature of Quebec; and both these Languages shall be used in the respective
Records and Journals of those Houses; and either of those Languages may be
used by any Person or in any Pleading or Process in or issuing from any Court
of Canada established under this Act, and in or from all or any of the Courts of
Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be
printed and published in both those Languages.”
Thus the simple description of Canada as a “bilingual country” is mis-
leading, unless understood in the special Canadian sense.
The incompleteness in Canadian bilingualism is a source of irritation in
Quebec, just as any extension of French annoys certain elements in English-
speaking provinces. Attacks upon the whole notion of bilingualism have come
from several parts of the country. Instead of seeing in these two languages,
which happen today to be the two working languages of the United Nations,
a source of cultural richness, bilingualism is frequently felt to be a handicap
to be overcome. Thus in 1890 Manitoba repealed that section of its original
constitution which had made French an official language for the province.
In 1877 Ottawa introduced French into the Northwest Territories, but in
1891 permitted the Legislative Assembly of the Territories to decide the
question itself, and in 1892 it abolished the use of French for debates –
a
further example of how local autonomy may be used to restrict minority
rights.23 Ontario’s decision in 1912 to limit the use of French as a language
of instruction in her schools raised a storm of protest, not alleviated by Court
rulings that the law was constitutional. In 1937, Mr. Duplessis put through
an amendment to make the French text of the Civil Code and statutes of
Quebec prevail over the English
in case of conflict, but as this was clearly
contrary to section 133 of the BdN.A. Act he was induced to repeal the law,
so that the two languages remain on an equal footing in Quebec.
French has thus lost some of the status it once held in the law of western
Canada. On the other hand the federal control over broadcasting has brought
French programmes into areas which, had radio been a provincial matter,
would not have permitted it. Strong pressure from Quebec, and a somewhat
more rational attitude toward bilingualism, have resulted in the establish-
23French continues, however, as an official language in the Courts of the Territories.
No. 1]
PUBLIC LAW AND POLICY
ment by the Canadian Broadcasting Corporation of French-language stations
on the prairies. A French network has been set up, bringing programmes to
French minorities far from their homeland. Radio and television are important
influences in the extension of the French language in Canada and of English
in Quebec. Since, however, the French are concentrated in the Quebec
region and represent less than 30% of the total Canadian population, a wide-
spread familiarity with the second official language is hardly to be anticipated,
however desirable it may be.
CIVIL LIBERTIES
The Canadian constitution does not contain a Bill of Rights such as is
found in the American and other written constitutions. Some constitutional
guarantees, such as those for separate schools, the two languages, and annual
sessions of Parliament, are in the text of the B.N.A. Act, but freedom of
religion, speech, press and assembly are not mentioned in the written law.
As in England, they remain sacred by tradition but .at the mercy of legisla-
tion. The only question for Canada is which legislature has jurisdiction –
federal or provincial; the rights themselves are seemingly not beyond parlia-
mentary modification.
Perhaps nowhere in the public law of Canada is the difference of outlook
between French and English more marked than in respect to civil liberties.
The order of values is not the same in the two peoples; the tradition and
situation of Quebec make its people emphasize their own minority rights at
all times, while in other provinces the stress is much more on individual rights.
The “village Hampden” that W~olfe was reputedly hearing about as he was
rowed under the cliffs of Quebec in September 1759 was unknown to New
France, where representative institutions, even on the municipal level, had
never existed. The Declaration of the Rights of Man, France’s great con-
tribution to modern liberal thought, came after the cession, and was then so
associated with anti-clericalism as to render it ever afterwards suspect by
the Catholic Church in Canada .On the other hand, English public law had not
worked out any theory of minority rights guaranteed by law.
The British conquest was the first revolutionary experience French Can-
ada had ever had, and though the new sovereign soon introduced an elected
legislative assembly, and replaced the lettre de cachet by Habeas Corpus, the
cession created racial tensions not favourable to the growth of an indigenous
sense of personal freedom. Individual liberties thenceforth had an English
face, and the democracy thus begun was discovered by the French to possess
unexpected limitations when it seemed likely to transfer power to their hands.
Lower Canada’s fight for responsible government, as Durham rightly per-
ceived, was a struggle not of principles but of races, though democratic
slogans were used. The prime purpose was to assert minority rights against
the English, rather than, as in Upper Canada, to secure personal freedom
from arbitrary power of any kind. Since those days the concept of the “6tat
McGILL LAW JOURNAL
[Vol. 3
de si~ge” has persisted in Quebec and in French minorities in other prov-
inces, making them subordinate individual liberty to the common racial goal,
and to ostracise those of their own group who deviate from the official line
of action.
In the matter of religious toleration, similar differences of outlook appear.
No Protestant was ever allowed into New-France after 1627; Protestantism
was the religion of the conquerors which the French were forced to tolerate.
The British, intolerant of Catholicism at home, were obliged to give legal
status to Catholics in Quebec by the sheer necessities of Canadian life as
well as by the need for allies against the growing threat of revolt in America.
Toleration in these circumstances did not carry much conviction. The strong
Catholic tradition in Quebec has remained ultramontane rather than Gallican,
and authoritarian rather than liberal. Quebec has seen in parliamentary in-
stitutions a valuable instrument for asserting cultural differences, while the
English accepted toleration and minority rights in inverse proportion to
their distance from Quebec.
These various strands have shaped and are still shaping the evolution of
the laws relating to civil liberties. Examples can be found on both sides of a
disregard for the types of fundamental rights proclaimed in the Universal
Declaration of Human Rights of the United Nations. Only since World War
II, for instance, have the federal election laws removed several forms of
racial discrimination, and Ottawa’s attempt to deport some 4,000 Canadian
Japanese in 1945-46 will stand as a solemn reminder that racial prejudice
can spring up anywhere in Canada. Quebec did not grant votes to women
until 1941, and her Civil Code still subjects married women to serious in-
capacities. But while Ottawa and various provincial governments were re-
moving discrimination from their laws, Quebec has been moving in the opposite
direction. Recently, certain Quebec statutes have curtailed the traditional
freedom of religion, of speech and of the press in a manner which has marked
off its legislation sharply from that of other provinces, and has created
conflicts both in public opinion and in the courts.
These statutes were all introduced by Premier Duplessis and backed by his
Union -Nationale Party. The most notorious of them, adopted in 1937, and
popularly known as the Padlock Act, makes it an offence to propagate “com-
munism or bolshevism” by any means in a “house” in the province, or to
publish or distribute any literature propagating or even “tending to pro-
pagate” these undefined doctrines. Any house may be padlocked, and the
occupant evicted, by the Attorney-General “on satisfactory proof” that the
Act is being violated, without any notice or trial in a court of law; to remove
the padlock the owner must institute an action in court and prove either
that the house was not in fact being so used or that he was ignorant of it.
Thus there is punishment without trial, and the burden of proof is cast upon
persons presumably innocent. Since the federal government refused to dis-
No. 1]
PUBLIC LAW AND POLICY
allow the Act, it remained in force and has been applied on numerous oc-
casions to activities of suspected communist groups. Its constitutionality
was upheld by Quebec courts, but a final appeal to the Supreme Court of
Canada is pending. While Canadian opinion, both in Quebec and outside, is
overwhelmingly opposed to the spread of communism, this type of legislation
is in direct conflict with traditional freedom concepts and nothing similar to
it has existed in Canadian law in peacetime.
Other examples may be given of recent Quebec legislation restricting ancient
civil liberties. A provincial statute enacted in 1947 enables municipalities to
prohibit the distribution on their streets of any literature or pamphlets without
the permission of a municipal chief of police. Thus a local policeman becomes
a press censor. Many municipalities have adopted such by-laws, and even
federal candidates at federal elections have found themselves obliged to sub-
mit their election literature to police approval. 24 The prohibition appears to
be aimed at the activities of Jehovah’s Witnesses and communists; like all
such laws, in striking at minorites, it deprives everyone of rights. In 1950
the Quebec legislature adopted the Act Respecting Publications and Public
Morals, by which the Board of Cinema Censors may issue a censure order
against magazines and certain other publications which are found to contain
“immoral illustrations”, whereupon all copies may be seized by the police
with or without warrant. Another Quebec statute enabled municipalities to
close commercial establishments on certain Catholic feast days, whether or not
they were owned by Catholics. Montreal’s attempt to apply the law was,
however, held unconstitutional by the Supreme Court of Canada, overruling
the Quebec Court of Appeal, and the statute itself was held to be criminal
law, a subject outside provincial powers under the B;N.A. Act.25 Still other
Quebec statutes have seriously restricted the rights of trade unions. One bars
all strikes and lock-outs, and imposes compulsory arbitration, in all “public
services” in the province, including municipal and school corporations, public
transportation systems and public utilities. )No other province in Canada
feels such drastic curbs to be necessary. Another Quebec law requires that
the certificate of recognition of all trade unions must be refused or revoked
if they tolerate so much as one organizer or officer adhering “to a communist
party or movement”, thus limiting the unions’ freedom to choose its own
leaders. And in 1954, the Freedom of Worship Act, dating from before
Confederation, was amended so as to narrow considerably the toleration
hitherto allowed.26
While these Quebec laws are in conflict with traditional freedoms
in
Canada, provisions not so dissimilar have been found in other parts of the
24See Scott, F. R., Correspondence, 31 Can. Bar Review (1953) p. 591; also Dame
Dionne v. The Municipal Court [1956] S.C. 289.
25See Birks & Sons v. City of Montreal, [1955] S.C.R. 799.
2 6Statutes of Quebec, 1953-54, cap. 15. The amendment forbids “abusive or insulting
attacks against the practice of a religious profession”.
McGILL LAW JOURNAL
[Vol. 3
country at various times. Certainly the Quebec community is not alone in
reacting against communists, Jehovah’s Witnesses and trade unions. British
Columbia prevented a qualified student from practicing law because he was a
communist ;27 the Labour Relations Board of Nova Scotia refused to certify
a union whose secretary-treasurer was a communist ;28 Prince Edward
Island in 1948 adopted a law amounting almost to total prohibition of trade
unions ;20 Alberta has passed a statute limiting the right of Hutterites colonies
to purchase land.30 The Quebec laws, particularly the Padlock Act, are severe,
but may well represent a temporary reaction to a new situation. There are
some signs that within Quebec society itself, particularly among trade unionists,
there is a growing awareness of- the need for protecting individual rights
against Quebec authorities. Industrial disputes place the French-Canadian
worker in opposition to French-Canadian employers and provincial police.
Racial categories break down before economic facts. Catholic teachers once
went on strike in Montreal against the Catholic School Commission, and their
union fought valiantly, though unsuccessfully, for its rights to collective
bargaining.31
Surveying the recent battles over civil liberties which have for the first
time been presented to the Quebec courts, it seems fair to say that the judges
in Quebec are far more inclined than are the common law judges to uphold
the authority of the state as against the individual, though generalisations
here must be used with caution. In five recent leading cases, dealing with the
definition of sedition,32 with arbitrary de-certification of a trade union,3 3 with
the control of pamphlet distribution by cities,3 4 with liability of police officers
for unlawfully disturbing a meeting of Jehovah’s Witnesses,3 5 and with
compulsory observance of Catholic feast days,36
the Supreme Court of
Canada took a more liberal view of private rights than did the Quebec Court
of Appeal, which was overruled every time. Two further cases, involving the
27Meredith, E., “Communism and the B.C. Bar,” 1950 28 Can. Bar Review 893.
2 8Smith & Rhuland Ltd. v. The Queen [1953] 2 S.C.R. 95; 1954 Can. Bar Review, pp.
85, 353.
29Forsey, E. A., “The P.E.I. Trade Union Act”, 1948 Can. Bar Review 1159.
3OSee Communal Property Act, 1947 Alberta Statutes Cap. 16.
31The Union, having been illegally decertified by the Quebec Labour Relations Board,
won back in the Supreme Court of Canada (overruling the Quebec Court of Appeal)
its right to recognition as the bargaining unit, only to have the right taken away by re-
troactive legislation put through the Quebec Legislature. See Alliance des Professeurs
Catholiqucs v. Labour Relations Board [1953] 2 S.C.R. 140: 2-3 Eliz. 11, Cap. 11
(Quebec).
32The Boucher case: [1951] S.C.R. 265; 1951 Can. Bar Review p. 193.
33The Alliance case: [1953] 2 S.C.R. 140; 1953 Can. Bar Review p. 821.
34The Saumur case: [1953] 2 S.C.R. 299.
35The Chaput case: [1955] S.C.R. 834.
3GThe Birks case: supra note (25).
No. 1]
PUBLIC LAW AND POLICY
validity of the Padlock Acts” and the legality of the cancellation of a liquor
license held by Witnesses of Jehovah3″ seems to show the same support of
authority .by Quebec judges. It is only to be expected that Quebec Courts,
like any others, will reflect in large part the prevailing attitudes of the com-
munity from which they are drawn, and that community is still highly
authoritarian.
CONCLUSION
It is necessary to repeat again what was said earlier about the relation-
ship between areas of conflict and areas of co-operation. Conflict in any acute
sense between Quebec and the rest of Canada is the exception, not the rule,
but it is often vivid and sometimes profound, and its existence throws light
upon the root differences in the two cultures. Within the legal order, cultural
conflicts present no different problem from class conflicts or international
conflicts; they are one among the many types which it is the purpose of
the law to resolve by peaceful means with the minimum of effort. If contained
within the bounds of constitutionalism, they are a creative force moulding the
law and adapting it to the satisfaction of larger numbers of people. Canadian
public law, with its mixture of English and Canadian rules, has shown itself
to be sufficiently humane in principle and adaptable in practice to suit the
needs of most Canadians, as is evidenced by the small number of substantive
changes made in the Constitution since 1867. That the French minorities
however, still feel dissatisfied on certain issues has already been indicated,
and conflicts of opinion about the nature of Canadian federalism are as acute
today at they have ever been.
What immediately lies ahead of Canadians is the problem of completing the
“nationalisation” of the constitution. The B.N.A. Act remains a British statute;
its very name belongs to an age that is past. Fundamental changes in its
provisions cannot be made wholly within Canada, for the quaint procedure
known as the “Joint Address” of the Senate and House of Commons to the
United Kingdom Parliament for proposed amendments has survived Can-
ada’s achievement of nationhood. Until a new procedure is agreed upon for
these amendments, capable of being carried out inside the country, legal
sovereignty cannot be finally transferred from England to Canada. The
Constitutional Conference of 1950 failed to achieve this solution because
Quebec insisted on the right of veto on every amendment affecting “property
and civil rights”, though the other provinces were quite willing to entrench
the minority rights clauses. 39 Hence the English-French complex is respons-
37The Switzman case: Padlock Act upheld by Quebec Court of Appeal, [1954] Q.B.
421. Appeal pending in Supreme Court.
3SThe Roncarelli case: cancellation upheld by Quebec Court of Appeal, [1956] Q. B.
447. Appeal pending in Supreme Court.
39See the two volumes of Proceedings of the Constitutional Conference of Federal and
Provincial Governments, Ottawa, 1950.
50
McGILL LAW JOURNAL
[Vol. 3
ible for the continuing element of colonialism in Canada’s relations with Great
Britain. The fear of Ottawa is seemingly greater in Quebec than the fear of
London, though since London by constitutional convention must always act
at Ottawa’s request, the retention of the sovereignty of Westminster does not
remove the danger of overriding by the majority.40 By tacit agreement the
political parties now leave in abeyance a question fraught with such danger
of race conflict. Perhaps the drafting of a Canadian Bill of Rights, placing
fundamental freedoms as well as minority rights beyond the risk of dim-
inution without the unanimous consent of all provinces, might provide a basis
on which a reasonably flexible amending process for other parts of the con-
stitution might be established, and the legislative independence of the country
finally secured.
4ODespite the contrary argument in Gmrin-Lajoie, Constitutional Amendment in Can-
ada, same author, “Du pouvoir d’amendement constitutionnel,” 29 Can. Bar Review,
1136 at p. 1149.
