Understanding 1 Canada's Origins: Federalism, Multiculturalism, and the Will to Live Together Samuel V. LaSelva
"More than most other countries, Canada is a creation of human will. It has been called a `geographical absurdity,' an `appendage of the United States,' a `4,000-mile main street' with many bare stretches. Nevertheless this country has existed for a long time, because its people have never stopped willing that there be a Canada."
--- Preliminary Report of the Royal Commission on Bilingualism and Biculturalism 144
Introduction: The Canadian Enigma
Canada has existed for a long time, but Canada is a difficult country to understand and also a difficult country to govern both in times of constitutional crisis and in periods of constitutional stability. Even if Canadians "have never stopped willing that there be a Canada," the near successful sovereignty referendum in Quebec and the Supreme Court secession reference suggest that Canada's continued existence cannot be taken for granted. The sovereignty referendum and the secession reference
2 focussed on Quebec and reveal its complex relationship to the rest of Canada, a relationship which is not fully or easily encapsulated within Parliament's recent, ambiguous, and aspirational declaration that the Quebecois form a nation within a united Canada. The difficulties that confront Canadians are by no means confined to the French-English question. Aboriginal nationalism, with its demand for aboriginal sovereignty, raises equally difficult questions. There are also multicultural groups. These groups together with women, gays, lesbians, the handicapped - do not threaten the unity of Canada, but they seek to shape its identity and their demands can conflict with those of other political actors. The failed Meech Lake and Charlottetown Constitutional Accords demonstrate that the very pluralism of Canada can sometimes result in "mosaic madness" and may yet compel Canadians to "look into the abyss" (Bibby, 1990; Cairns, 1997). When the focus is shifted away from megaconstitutional matters to issues like health care or the Canadian Social Union or the federal spending power, problems of disunity and fragmentation are just as evident and Canada continues to be both a difficult country to understand and a difficult country to govern (Adam, 2007: 32-4; Petter, 1989: 463-68).
3 Consequently, Canada is often regarded as a "geographical absurdity" or even an "impossible country". Canada, it has been urged, "preserves nothing of value. It is literally nothing. It is the absence of a sense of identity, the absence of a common life" (Horowitz, 1985: 363). When such a view is taken, Canada is regarded as a country without a future and Canadians are urged to begin the process of deconfederation. But not everyone favours the fragmentation of Canada, or the creation of regional and ethnic solitudes, or absorption into the United States. Many Canadians believe that Canada does preserve something of value and that the Canadian experiment differs from the American Union. But why is Canada worth preserving? Historically, one of the most evocative expressions of Canadian distinctiveness has been the motto, "true north, strong and free." As a northern country, Canada was held to differ from the United States and to express unique character values. Canada's cold climate was also used to explain its adherence to British liberty and its rejection of American-style democracy (Berger, 1966: 15). Just as evocative is the celebration of Canadian multiculturalism that often occupies pride of place in contemporary accounts of Canada's uniqueness. In his Conversation with Canadians, Pierre Trudeau contrasted Canada with the American melting-pot and insisted that a vigorous policy of multiculturalism formed the basis of fair play for all Canadians. Of course Trudeau attached
4 even greater significance to the Canadian Charter of Rights and Freedoms. In his Memoirs, he emphasized that his search for the Canadian identity "had led [him] to insist on the charter" (Trudeau, 1993: 323).
However, the adoption of the Charter has not settled the most difficult questions about the Canadian identity. If anything, Canadians are more divided than before on the most fundamental questions. Charter patriotism has come into conflict with the other particularisms that define Canada, with the result that Canada has become an even more difficult country to govern and a more difficult country to understand. Trudeau believed that the Charter would provide Canadians with a new beginning and a foundation for the future. Yet Canada existed for a long time before the Charter was adopted in 1982 and Trudeau took too little account of this fact. The Canadian nation, a distinguished historian has written, "is fragile indeed, and one reason ... might well be the lack of a history that binds Canadians together. It is not that we do not have such a history. It is simply that we have chosen not to remember it." He goes on to say: "If we have no past, then surely ... we have no future"(Granatstein, 1998: xvii, xviii). Others, like Janet Ajzenstat, are more specific. They warn that "we have lost the Fathers' insight," they pray that Canada will not "be
5 wracked by the terrible passions that have inflicted such damage on European nations in the twentieth century," and they hope "that our shortsightedness never catches up with us" (Ajzenstat, 2007: xii, 109). Not only do Canadians have a past, but their past has demonstrated their will to live together. If they assume, as Trudeau often did, that "the past is another country", they lose the opportunity to reflect more deeply on the distinctiveness of their country, the values it has come to represent, and the challenges that bedevil it. Canada may never become an easy country to govern, but it can become a less difficult country to understand.
Confederation and Canadian Federalist Theory
Unlike Canadians, Americans do not need to be told about the importance of their history; they revere their past and draw sustenance from it even in times of crisis. In the Gettysburg Address, delivered during the American civil war, Abraham Lincoln prayed for a "new birth" of freedom so that government by the people would not perish (Current, ed. 1967: 284-5). But Lincoln began his address by invoking the Declaration of Independence and by remembering that the American founders had brought forth a new nation conceived in liberty and dedicated to equality. The paradox of Lincoln is that he was able to utter
6 "the words that remade America" by appealing to the spirit of its most important founding document (Wills, 1992: 120). In contrast, no theme of Canadian history seems better established or more often retold than the failure of the Macdonaldian constitution. In textbook accounts, the Confederation Settlement of 1867 is identified almost exclusively with Macdonald and his failed dream of creating a highly centralized state that reduced the provinces to little more than administrative units and that conferred almost imperial powers on Ottawa. Where constitutional scholars diverged is with respect to the reasons for the failure. Some blame the Judicial Committee of the Privy Council and believe that its decentralizing judicial decisions undermined the original understanding of Confederation. Others insist that Macdonald's vision was flawed from the outset because it underestimated the pluralism of Canada, a pluralism that initially manifested itself though a strong provincial rights movement and eventually incorporated Quebec's quiet revolution as well as the demands of new Canadians. If such accounts of Confederation are sound, then Canada's constitutional past is little more than a lesson in failure and, unlike American history, hardly worth remembering.
But there is more to the Constitutional Settlement of 1867 than Macdonald's understanding of it (Gwyn, 2007: 5, 322-33).
7 Nor is the failure of Macdonald's constitutional vision tantamount to the defeat of Confederation. In the debates of 1865, Macdonald announced that he favoured a strong, unitary state for Canada because "it would be the best, the cheapest, the most vigorous, and the strongest system of government we could adopt" (Canada, 1865: 29). Macdonald was, after all, a Tory and he had a Tory vision of Canada. As a Tory, he celebrated the British connection, admired the unlimited sovereignty of the British Parliament, and exalted the nation. "The nation," Donald Creighton wrote in his account of Macdonald's idea of union, "transcends the group, the class, or section" (Creighton, 1972: 217). Macdonald dreamed of Canada as "a great nationality, commanding the respect of the world, able to hold our own against all opponents." But even Macdonald had to admit that his dream of a Tory Union was "impracticable". It was impractical, he said in the debates of 1865, because it did not meet with the assent of Quebec which feared that its nationality, language, religion and code of law might be assailed in a legislative union. And even the Maritime Provinces rejected the idea of a unitary state. As a result, Macdonald modified his views and accepted the project of a Federal Union. However, Macdonald still claimed victory. Canada would be a Federal Union, but the Parliament of Canada would have all the great powers of legislation as well as the residual power. By so
8 strengthening the central government, he insisted, "we make ... the Confederation one people and one government" (Canada, 1865: 41).
For Macdonald, the important contrast was with the United States and its federal experiment. Federalism is often regarded as an American invention. It is just as often praised for guaranteeing freedom. But in 1865, many Canadians viewed federalism with suspicion, partly because it was regarded as inconsistent with parliamentary institutions and partly because of its association with the American civil war. In response, Macdonald's bold tact was both to praise the United States Constitution and to insist that its framers "had commenced at the wrong end." They had made each state "a sovereignty in itself" and had conferred too limited powers on the general government. By so doing, they made "States Rights" the defining feature of their federation, and prepared the way for the civil war. Moreover, the American President, Macdonald added, was merely a party leader and incapable of representing the whole of the American people. In contrast, Canadian Confederation accepted the monarchical principle and elevated the Sovereign above the rivalry of political parties. Confederation would also confer the criminal law power on the central government, thereby correcting the American mistake of allowing every state to enact
9 its own criminal code. It would establish Lieutenant-Governors for the provinces and create a unified judicial system controlled primarily by the central government. Macdonald even boasted that Canadian Confederation so successfully arranged the powers of government that, unlike the American union, it would eliminate "all conflict of jurisdiction and authority." By centralizing power rather than dispersing it, Confederation would create a new dominion of the North, one demonstrably superior to its southern neighbour because it solved the difficult problems of federalism (Canada, 1865: 33).
Such, in outline, was Macdonald's understanding of Confederation. Its importance is difficult to exaggerate. Canada's first century was, in constitutional terms, little more than an engagement with it. Moreover, its eventual failure made a second constitutional beginning almost inevitable. But why did the Macdonaldian constitution fail? Macdonald provided one answer. Less than two years after Confederation, he complained: "It is difficult to make the local Legislaures understand that their powers are not so great as they were before the Union." He then added: "In fact, the question that convulsed the United States and ended in Civil War, commonly know as the `States Rights' question, has already made its appearance in Canada" (Rogers, 1933: 17-18). For Macdonald, it was the refusal of the
10 provinces to accept the subordinate position assigned to them that shattered the original understanding of Confederation and, if pressed still further, would spell the failure of the Constitution. Not only did the provinces press their demands, but the Judicial Committee of the Privy Council was often sympathetic to them, so much so that in 1937 it struck down much of Prime Minister Bennett's `New Deal' legislation. Critics of the JCPC believe that its decentralizing decisions were largely responsible for failure of the Macdonaldian constitution, a failure that had severe economic and social consequence during the Great Depression of the 1930s. Its decisions also facilitated "province-building" which countered Macdonald's project of nation-building. Writing in 1979, Alan Cairns believed that province-building had produced "big governments" capable of embarking on policies usually reserved for sovereign nations. Province-building, he insisted, had turned the Canadian constitution into "a lame-duck constitution." It had made Canadian federalism into a game similar to "eleven elephants in a maze" and just as self-defeating (Cairns, 1988: 183, 188).
The defeat of the Macdonaldian constitution can also be explained in a way that does not privilege Macdonald's understanding of Confederation. In the debates of 1865, Macdonald's vision of Canada met with skepticism and even
11 derision from critics of Confederation. Christopher Dunkin rejected Macdonald's boast that there would be no conflicts of jurisdiction and authority under Confederation. He not only accused Macdonald of failing to respect the distinction between a legislative and a federal union, but also predicted the early demise of Confederation. The allocation of powers under the proposed Constitution, he said, would fuel quarrels rather than quell them. The Senate would not perform the functions assigned to it, and lieutenant governors, if they acted to control provincial legislatures, would provoke open resistance. Nor would judges appointed by the central government earn the confidence of the local legislatures. The provinces, he added, "cannot possibly work harmoniously together long; and so soon as they come into collision ... the fabric is at an end." Dunkin was not alone in refusing to "prophecy smooth things" (Canada, 1865: 487, 508, 530). Joseph Perrault warned that although French and English had come to a new world, they had brought their old hostilities with them. He recalled Lord Durham's assimilation proposals and complained that the real object of Confederation was, like Durham's, the obliteration of the French-Canadian nationality. He warned that French-Canadian patriots would defend their cultural heritage and predicted that racial tensions would disrupt Confederation (Canada, 1865: 596, 600, 612). For the critics of Confederation, it was the very
12 pluralism of Canada that rendered Macdonald's constitutional vision untenable. For them, the Macdonaldian constitution had failed even before it had been adopted.
The story of Canada is a story of failure so long as Confederation is understood as Macdonald's attempt to remedy "states rights" and other errors of American federalism by creating a highly centralized state. But there is more to Confederation. Confederation was also intended as a solution to Canadian problems and it was hardly achieved by Macdonald alone. "Canadians," wrote Carl J. Friedrich, "... had a very special problem to deal with which found no parallel in the American experience: that was how to arrange a federal system that would satisfy their French-speaking citizens" (Friedrich, 1967: 60-1). In the debates of 1865, Dunkin surmised that "the two differences of language and faith ... were the real reasons" for the supposed federal union, whose purpose it was to meet a "probable clashing of races and creeds" (Canada, 1865: 509). If French Canadians provided the "real" reason, the Maritime Provinces were the "other" reason, for they too rejected Macdonald's initial plea for a unitary state based on their concern to preserve their local identities and distinct destinies. Not the specter of the American civil war but the deep pluralism of Canada was the problem that most engaged
13 Canadians at Confederation. Moreover, when Confederation is understood as a response to the pluralism of Canada, pride of place belongs not to Macdonald but to his political co-equal, Georges Etienne Cartier. It was Cartier who, despite Macdonald's misgivings, insisted on significant autonomy for Quebec, and thereby guaranteed that Quebec and the other provinces would have exclusive and substantial powers of their own. Without him, Confederation would have remained a political dream.
In Cartier's understanding of it, Confederation represented a novel engagement with the pluralism of Canada, one that rejected both assimilation and cultural solitudes and envisaged the creation of a new political nationality (LaSelva, 1996: 3941, 156-60; Azjenstadt, 2007: 88-109). In response to Lord Durham and other advocates of assimilation, Cartier insisted that the project of racial unity was not only utopian but impossible, because diversity was "the order of the physical world and of the moral world." He also rejected the creation of cultural solitudes and the belief that cultural peace was impossible without them. On the contrary, he insisted that the racial, cultural, and religious diversity of Canada was a benefit rather than otherwise. "We were of different races," he observed, "not for the purpose of warring against each other, but in order to emulate for the general welfare." Moreover,
14 unlike Macdonald, Cartier was an unequivocal federalist; he believed that federalism, when responsive to cultural and local differences and combined with a suitable scheme of minority rights, made Canada possible. In his view, Canadian federalism did not presuppose the Canadian nation but created it. Confederation, he said, would bring into existence a new Canada and a new nationality, "a political nationality with which neither the national origin, nor the religion of any individual, would interfere" (Canada, 1865: 60). While Macdonald worried about "states rights" and the American civil war, Cartier reflected on the pluralism of Canada and imagined a new kind of nationality. But Cartier died in 1873 and his understanding of Confederation was nearly forgotten. Macdonald lived until 1891
and struggled to realize his vision of Canada, only to witness the emergence of a strong provincial rights movement as well as the compact theory of Confederation, both of which countered the Macdonaldian constitution and worked to defeat it.
A Second Beginning: Charter Canadians, Multicultural Citizenship, and Trudeau's Canada
In contemporary Canada, almost no one worries much about the fate of the Macdonaldian constitution. The past and certainly Macdonald's idea of Tory union - almost seems a
15 different country and the Canadian model is now increasingly identified with multiculturalism and the Charter of Rights (Igartua, 2006: 1, 164-92). That such a change has occurred is due in no small measure to Pierre Elliott Trudeau. For more than a century, Canadians struggled with Macdonald's vision of Confederation. But with the adoption of the Charter of Rights and the other changes of 1982, they increasingly live in a constitutional world reshaped by the liberal universalism of Pierre Trudeau. Trudeau's constitutional world is not Macdonald's. Macdonald was a Tory; Trudeau, a liberal. Macdonald cherished the past and valued the British connection; Trudeau looked to the future, and admired the American constitutional system. For Macdonald, sovereignty ideally resided in parliament; for Trudeau, in the individual. Macdonald feared federalism; Trudeau celebrated the pluralism that federalism brings. Moreover, Trudeau also embraced multiculturalism, and multiculturalism bears no resemblance at all to Macdonald's idea of Tory union. If Canadians increasingly neglect their past, only part of the reason is the failure of the Macdonaldian constitution. Just as important is the extent to which Trudeau's vision of the future has captured the public imagination of Canadians. In Trudeau's constitutional vision, the past is another country and the future is a liberal utopia (LaSelva, 2007: 11-18). But Trudeau's constitutional vision has not been
16 embraced by all Canadians and it has not produced a more harmonious Canada. Trudeau's constitutional vision has replaced Macdonald's, but Canadians struggle with it just as they once struggled with the Macdonaldian constitution.
Trudeau is an enigmatic figure, and recent revelations about his youthful political activities have made him even more so (Nemni, 2006: 173-74, 266-73). A philosopher turned politician, he initially warned against fundamental constitutional change, but then introduced, as Prime Minister, the most important innovations since Confederation. His motto was "reason over passion," yet he had passionate commitments to a reconstructed federalism, to a charter of human rights, and to Canada itself. In his earlier years, he rejected patriotism only to embrace it when he felt in his bones the vastness of his country. He regarded the Canadian mosaic as superior to the American melting-pot, and insisted that no such thing as a model or ideal Canadian existed. For him, multiculturalism made Canada "a very special place" because it offered every Canadian "the opportunity to fulfil his own cultural instincts and to share those from other sources" (Trudeau, 1972: 32). Moreover, he regarded Canadian federalism as an experiment of major proportions. If French and English co-operated to create a truly pluralistic state, Canada could serve as an example for the new
17 Asian and African states on "how to govern their polyethnic populations with ... justice and liberty." Such a Canada, he insisted, would have the best reason possible for rejecting "the lure of annexation to the United States" (Trudeau, 1968: 178-9). Trudeau's commitment was to a Canada that differed fundamentally from the United States; yet Trudeau also believed that Canada required a fully entrenched Charter of Rights that, like the American Bill of Rights, secured the "primacy of the individual" and the "sovereignty of the people." For Trudeau, such a Charter would secure "inalienable rights" and express the "purest liberalism." It would provide "a new beginning for the Canadian nation" and bring into existence a Canada with which all Canadians could identify (Trudeau, 1990: 363).
Trudeau attached the utmost importance to his proposed Charter of Rights and pinned virtually all his hopes for Canada on it. Even before he entered politics, he strongly favoured the adoption of a Charter of Rights while warning Canadians that other constitutional changes, such as modification of the division of powers or a reformed senate, were either not pressing or too perilous to undertake. When he became minister of justice, he called on both Ottawa and the provinces to restrict their powers in favour of the basic human values of all Canadians political, legal, eqalitarian, linguistic. With such
18 a constitutional innovation, he said, "we will be testing and, hopefully establishing the unity of Canada" (Trudeau, 1968: 54). Shortly after becoming prime minister, he renewed his call for an entrenched Charter and insisted that constitutional reform should take as its starting-point the rights of the people rather than the rights of government. The principal objective of constitutional reform, he said, should be to "construct a Canada in which the prime strength is ... in the people; a country which is knit [together] by persons confident of their individual rights wherever they might live; a Canada with which the people may identify" (Trudeau, 1972: 91, 94). After the Charter was adopted, Trudeau reminded Canadians of its crucial importance: it embodied a set of common values and ensured that all Canadians had the same rights. "All Canadians," he wrote, "are equal, and that equality flows from the Charter" (Johnston, ed. 1990: 34). In his Memoirs, Trudeau even surmised that the adoption of the Charter had solved the long-standing problem of the Canadian identity.
In Trudeau's conception of it, the Charter embodies common values and guarantees the equality of Canadians. Thereby, it expresses the identity of Canada and secures its unity. But the fundamental fact about Canada is its many-sided pluralism and Trudeau knew as much. Why else did he sponsor official
19 multiculturalism or remind Canadians, in a speech on Louis Riel, that a democracy is ultimately judged by the way the majority treats the minority. Trudeau went further still. "Canada's population distribution," he noted as early as 1971, "has now become so balanced as to deny any one racial or linguistic component an absolute majority. Every single person in Canada is now a member of a minority group" (Trudeau, 1972: 32). What, then, is to be done about minority rights? And how are minority rights to be reconciled with the equality of Canadians? Trudeau provided an answer to these questions, and his answer is rooted in his commitment to liberalism. Trudeau said that because Canada was a mosaic rather than a melting-pot, the Charter protected both individual rights and minority rights. In protecting the rights of minorities, however, the Charter sought, whenever possible and even in the case of the official languages, "to define rights exclusively as belonging to a person rather than a collectivity." Trudeau went on to say: "the spirit and substance of the Charter is to protect the individual against tyranny not only that of the state but also any other to which the individual may be subjected by virtue of his belonging to a minority group" (Trudeau, 1990: 365). Put in another way, the Charter treats all Canadians equally because it does not privilege minority rights, but treats minority rights as derivative of individual rights. Had Trudeau's liberalism
20 solved the problem of minority rights and envisioned a Canada with which all Canadians could identify?
These are difficult questions. The answers to them can be partly gleaned from Trudeau's opposition to the Meech Lake Constitutional Accord. The Accord had as its basic purpose the recognition of Quebec as a distinct society within Canada. Such recognition was deemed necessary partly because the government of Quebec regarded the Charter as unduly restrictive of its autonomy. The Accord was almost ratified, but eventually failed. In rejecting the Accord, Trudeau both defended the Charter and reformulated his long-standing opposition to special status for Quebec. According to Trudeau, the Meech Lake Accord would require Canadians to "Say Goodbye to the Dream of One Canada." "For Canadians who dreamed of the Charter as a new beginning for Canada," he wrote, "... where citizenship [is based on] commonly shared values, there is to be nothing left but tears" (Johnston, ed. 1990: 10). For Trudeau, the spirit of the Meech Lake Accord conflicted with the spirit of the Charter and special status for Quebec of any kind destroyed the dream of one Canada (Cook, 2006: 151-62). But such a position encounters a host of difficulties, not the least of which is the fact that the Confederation Settlement of 1867 accommodated Quebec and even used Quebec's distinctiveness to shape the Canadian federation.
21 If Trudeau's vision of the Charter cannot accommodate Quebec, then his conception of minority rights is problematic and Trudeau's Canada is not a Canada with which all Canadians can identity
Trudeau's vision of Canada contains a number of unsettling ironies. Trudeau's most basic objective was to de-legitimate Quebecois separatism by creating a truly pluralistic Canada with which Quebeckers and other Canadians could identify. The formula he initially embraced was "multiculturalism within a bilingual framework" (Trudeau, 1985 [1971]: 350). What Trudeau's Charter adds to the formula is the theme of equality: Canadians are equal citizens in a multicultural society that exists within a bilingual framework. If the revised formula captures Trudeau's vision of Canada, then the first irony is that it does nothing at all to satisfy the historic demand of Quebec, namely, the recognition of Quebec's distinctiveness so that the French Canadian homeland can flourish within Canada (Laforest, 2001: 304-5). And even if Canada is conceived without Quebec, the formula remains untenable because it does not adequately Aboriginal accommodate Canadians. In the Statement on Indian Policy, the Trudeau government had asked Aboriginals to move off their reserves and become full members of Canada's multicultural society. They were told that different status was "a blind
22 alley." (Government of Canada, 1969: 5, 9; Trudeau, 1972: 1315). But Aboriginals rejected Trudeau's proposal. As Canada's First Peoples with historic entitlements to self-government, they struggled to have their rights recognized first by the courts and then again in sections 25 and 35 of the Constitution Act, 1982. Later, the Government of Canada also apologized to Aboriginals for the treatment they received in residential schools and initiated a truth and reconciliation commission. Taken together, these facts created the second irony for Trudeau's vision of Canada. Aboriginals were accommodated within Canada only when their claim to special status was recognized; but if their claim was (as it should have been) recognized, then Quebec's claim to distinct status is and should be no less imperative and no less capable of explicit recognition and accommodation in the text of the constitution.
Trudeau said that the Charter protects minority rights; it would be more accurate to say that it brings minorities into conflict and thereby challenges the dream of one Canada (Cairns, 1991: 108). The Charter does not protect the right of French Canadians to a homeland within Canada or the right of Aboriginal Canadians to self-government. But it does protect the rights of "Charter Canadians" (women, gays, lesbians, the handicapped) and multicultural citizens (new immigrants). In The Charter
23 Revolution and the Court Party, Morton and Knopff argue that the Charter has transformed the Canadian constitutional system by transferring power from legislatures to courts. Moreover, although Trudeau often portrayed the Charter as victory for minority rights over majority tyranny, they insist that the Charter revolution is not about tyranny at all. Canada, they write, would remain a liberal democracy "regardless of the outcome of such Charter issues as whether Sikhs in the RCMP are allowed to wear turbans or the legal definition of spouse is read to include homosexuals" (Morton and Knopff, 2000: 36). For them, the most sinister aspect of Charter litigation is that it enables special interest groups to advance their agendas under the guise of inalienable rights and at the expense of democratic politics. Will Kymlicka takes a more benign view. In Multicultural Citizenship, he argues that the recognition of multicultural or polyethnic rights is nothing less than a requirement of liberal justice. Such minority rights deserve recognition, he insists, partly because individual choices are made in a cultural context and partly because to deny them is to unfairly privilege the dominant culture. But Kymlicka stops short of saying that the recognition of multicultural or polyethnic rights has made Canada an easier country to understand or govern. In fact, he believes that Canadians lack a theory of what holds their country together (Kymlicka, 1995: 76,
24 109, 192). In a later essay, Kymlicka reflected again on Canada and insisted that the Canadian model of pluralism should be judged a success, at least when compared to European nations where ethnic and cultural pluralism has frequently resulted in reactionary policies, secession and even civil war (Kymlicka, 2007: 69, 79-81).
As for Trudeau, he became less sanguine about Canada's future, as can be seen from his reflections on the Charlottetown Constitutional Accord of 1992 which provided him with a final opportunity to discuss minority rights and to explain his vision of Canada. If the Charter is, as Trudeau called it, the "people's package," then the Charlottetown Accord was the "Canada round." Its purpose was to recognize the rights of Charter Canadians and multicultural citizens alongside the right of Aboriginals to self-government and Quebec's status as a distinct society. The Accord also contained provisions for the reform of central institutions such as an elected Senate, outlined a comprehensive social and economic union for Canada, and modified aspects of the division of powers as well as the amending formula. When Canadians voted on the Accord, they rejected it and Trudeau believed that they made the only choice possible. In a speech delivered before its defeat, Trudeau described the Accord as "A Mess That Deserves A Big `NO'". He
25 insisted the Accord was nothing less that a recipe for dictatorship and a prelude to civil war because it undermined equality, established a hierarchy among citizens, and privileged collective rights over individual rights. Moreover, he reminded Canadians that his own constitutional vision was based on inalienable rights and he reiterated his admiration for the American constitution. He urged Canadians to read Madison's number 10 of the Federalist Papers, informed them that the American Supreme Court had been established to defend individual rights, and reminded them that the American system had "worked out well" (Trudeau, 1992: 57-8, 44, 47-8). Trudeau regarded the Charlottetown Accord as such a mess that it almost drove him to abandon the Canadian mosaic and embrace the American model.
The Will to Live Together: Pluralism in Canada and the United States
What followed the defeat of the Charlottetown Accord was a near successful sovereignty referendum in Quebec, and then a landmark reference case in the Supreme Court on the secession question and the break up of Canada. The Secession Reference is now part of Canadian constitutional history, but it also has an enduring and practical relevance because of the fundamental constitutional principles that the Supreme announced in it. In
26 the Secession Reference, the most immediate and pressing question was whether or not Quebec had a unilateral right of secession under the Canadian constitution. The Supreme Court ruled that Quebec had no such right, but it also insisted on the duty of all concerned parties to negotiate constitutional change, including the possible dissolution of Canada. The federalism principle, together with the democratic principle, the Court held, "dictates that the clear repudiation of the existing constitutional order ... would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes." The Court's ruling is important, partly because it denies that secession is purely a political matter and brings it within the pale of the constitution. The Court's decision is also important for a different reason. In order to arrive at its decision, the Court had to analyze the Canadian Constitution, but instead of adopting a narrow or legalistic approach, it attempted to uncover nothing less than the Constitution's "internal architecture" and its fundamental principles. In fact, the Court identified four such principles: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. The Court insisted that these four principles of Canadian constitutionalism were as new as the Charter and as old as Confederation (Supreme Court of Canada, 1998: 424, 410, 403). The Court's opinion is much more than a
27 discussion of the secession question. It is also an innovative exploration of the Canadian constitution and the pluralism of Canada.
In the Secession Reference, the Court quietly corrected several widespread fallacies of Canadian constitutionalism and attempted to replace them with sounder positions. The first fallacy did not originate with Trudeau but is best exemplified by him. Trudeau never tired of insisting that the Charter provided a new beginning for the Canadian people. Others have described Canada before the advent of the Charter as a "lost constitutional world" (Cairns, 1995: 97). The Court did not
deny the importance of the Charter or underestimate the changes that had come with it. The Court recognized that the Charter significantly restricted parliament and the provincial legislatures while considerably enhancing the authority of the judicial branch. But it also insisted that, with respect to minority rights, the Charter represented a continuance of Canada's constitutional past rather than a break with it. "Although Canada's record of upholding the rights of minorities is not a spotless one," the Court wrote, "that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes." The Court insisted that even the "recent and arduous" achievement of
28 Aboriginal rights was "consistent with this long tradition of respect for minorities, which is at least as old as Canada itself" (Supreme Court of Canada, 1998: 422). In the opinion of the Court, the goal of protecting minority rights did not suddenly emerge with the adoption of the Charter but was an integral part of the Confederation Settlement of 1867 and a defining feature of the Canadian identity.
The second fallacy corrected by the Court also relates to Confederation and, in particular, the interpretation of it as the Macdonaldian constitution. When the focus is on Macdonald, the emphasis is on the unitary features of the Canadian constitution and the dream of a Tory Union. What is remembered is the desire of the Fathers of Confederation to create a Constitution similar in principle to that of the United Kingdom, and it is almost forgotten that, in the very same preamble to the Constitution, they first expressed their desire to be federally united. Canada becomes lost in the British connection and the Canadian identity becomes almost impossible to comprehend. Such has been the influence of Macdonald. The Court did not so much deny Macdonald's influence as largely ignore it, and drew attention instead to the importance of Cartier and his goal of creating a Canadian federal state that solved Canadian problems. The Court quoted at length Cartier's belief that
29 Canadians had come together to contribute to the common welfare and to create a new political nationality with which neither the national origins nor the religion of any individual would interfere. Far from regarding federalism as an aberrant or incidental feature of the Canadian constitution, the Court insisted that "the significance of the adoption of a federal form of government cannot be exaggerated." Federalism was the "lodestar" of the Constitution. The federal-provincial division of powers was "a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation" (Supreme Court of Canada, 1998: 405, 412, 407).
By thus focusing on Cartier's vision of Canada, the Court reinterpreted Confederation and revealed its significance as the foundational event of Canadian constitutionalism and the defining moment in the evolution of Canadian pluralism. When so interpreted, Confederation is not a lost constitutional world, nor is it part of a past that is another country. Macdonald's idea of a Tory Union may be a failed constitutional experiment, but Cartier's vision of Canada is one that has yet to be achieved or even fully understood. What seems clear enough, though, is that Cartier's vision of Confederation differed from Macdonald's and it also differed from the American understanding
30 of constitutional pluralism. At Canada's founding, the leading exponent of constitutional pluralism was Cartier. In the United States, it was James Madison. He is commonly regarded as the Father of the American Constitution and also the author of the theory of the compound republic that underpins it. Less accurately referred to as the theory of checks and balances, the kernel of Madisonian pluralism is aptly stated in his own summary of it. "In the compound republic of America," Madison wrote, "the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments." Madison then added: "Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself" (Hamilton, Madison and Jay, 1961: 323). Writing almost eighty years before Cartier, Madison outlined a theory of pluralism that did for the United States what Cartier would attempt to do for Canada.
But Madison's theory is not Cartier's and the United States is not Canada. For Americans of the founding generation the most pressing problem was how to guarantee republican liberty while garnering the military and economic benefits of a large commercial empire. Moreover, Americans appeared to be caught in
31 a dilemma. They could either remain as they were after their War of Independence in a weak and ineffectual confederal system incapable of securing economic prosperity and military defence or they could adopt a unified and strong government that secured their prosperity without protecting their liberty. Based on their experience as colonies, they had come to associate empire with tyranny and small republics with self-government. Such was their predicament until Madison's famous theory of the compound republic challenged and reversed some of their most cherished assumptions. In the Federalist Papers, Madison argued that small republics, far from protecting liberty, were hothouses of oppression; and that a compound republic was in fact the best guarantee of liberty. At the centre of Madison's ingenious theory was the idea of a faction and his belief that a single, self-interested faction could oppress a small community but not a large society composed of a multiplicity of factions. If factions were the enemies of liberty, then the solution, so Madison reasoned, was to dilute their strength by multiplying their numbers in an extended territory, and then to render them incapable of oppression by dividing and re-dividing the powers of government. "In the extent and proper structure of the Union," Madison concluded, "we behold a republican remedy for the diseases most incident to republican government" (Hamilton, Madison and Jay, 1961: 84; Adair, 1998: 132-151).
32
Madison's theory was not without its critics. Antifederalists complained that it conferred too many powers on the central government. They defended local government and states' rights, and they demanded a Bill of Rights to curb any further centralization of power. But not even anti-federalists denied in 1787 that Americans formed one people (Storing, 1981: 24). Both federalists and anti-federalists took the American nation for granted and debated the kind of government that best preserves liberty. Therein rests the crucial difference between the United States and Canada. With the exception of the civil war and the slavery issue that fueled it, Americans have never questioned that they belong to the same nation (LaSelva, 1999: 771). Canada is different, because Canadians have never been able to take their nationhood for granted in this way. "The disadvantage of a synthetic state like ours," wrote John Holmes about Canada in the mid-1960s, "is that it lacks the visceral drive to achievement" and engenders "anxiety about national survival [based on] fear of our own failure of will." He then added: the "central problem" for Canada "is to find a reason for the country's existence" (Holmes, 1966: 204).
Unlike Canadians, Americans have almost no difficulty at all understanding the reason for the existence of their country.
33 There is an American civil religion and an American constitutional faith, and the American people form one nation dedicated to liberty. "Faith in America," wrote an influential Chief Justice of the United States, "confirms the hope that we shall preserve for our children all that our fathers ... secured for us; that our heritage of liberty will not dwindle, but increase" (Kammen, 2001: 12-13). Canadians also value liberty, but Canada was not conceived in a quest to preserve liberty or in a revolution against tyranny. If not liberty, what then does faith in Canada confirm? For Cartier, it meant that Canadians could form one country and live under a common constitution provided they also made adequate provision for their linguistic, ethnic and regional differences. Such a belief may seem uninspiring, until it is recalled that Lord Durham could see in Canada nothing but a war of races and that Christopher Dunkin forecast the early dissolution of Confederation based on the inability of the provinces to co-operate for very long. More recently, Canadian federalism has been compared to two scorpions in a bottle and eleven elephants in a maze. But Cartier had a different vision of federalism and Canada. For him, the existence of Canada represented the will of Canadians to live together under a common political nationality that presupposed mutual obligations and collective goals but did not require them to submerge their allegiances and identities in a monolithic and
34 all-embracing nationalism. Canadian federalism, with its scheme of minority rights, allowed multiple loyalties and multiple identities to flourish; it thereby enabled Canadians both to live together and to live apart in one country.
Conclusion: Understanding Canada
To understand Canada it is nece...