The Marxist Quarterly Autumn 1965

Jacques-Yvan Morin

Professor of Law, University of Montreal

IN ITS RECENT Preliminary Report the Laurendeau-Dunton Commission stated its acceptance, as a starting point, of a dual assumption: First, the existence of the Canadian state; and second, "the equality of the two peoples" who laid the historical foundations of the country. This notion of equal partnership recurs more than once in the Report: paragraph 116, for example, refers to it as a "central concept," a criterion allowing one to distinguish between "moderate" French Canadians, who believe in an eventual achievement of equality, and the separatists or quasi-separatists who do not believe equality is possible.

Individual and Collective Equality

But what, exactly, is equality? The French Revolution proclaimed it as one of the three foundations of the State: Liberty, Equality, Fraternity. Here it was clearly a matter of equality as between individuals, the principle born of the liberal philosophy of the Enlightenment. The Commission, however, has in mind rather an equality as between collectivities—human groupings distinguished by such characteristics as language and culture. Although the two concepts are closely related, this distinction between collective and individual equality is of great importance.

It is possible for there to be an equality that by and large puts individuals on the same footing in relation to the authorities and
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Paper presented to the Association des Educateurs de Langue francaise (ACELF), and first published in Le Devoir, March 23, 1965. Translated by permission of the author.

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to the school: all, regardless of language, must attend the same public schools, which of course are those of the majority. In a community that is culturally heterogeneous, such an "equality" is a camouflage for oppression; yet in the name of majority rule, it is sometimes designated "democracy." Actually, equality here is being confused with identity; what is being asserted is that since all are equal all must be alike!

The principle of real individual equality demands something more than this. It assumes that people have a right to be different and to belong to groups that are distinct. In other words, there can be no authentic equality as between individuals without a concrete equality as between ethnic and cultural groups. The equality of persons requires the equality of collectivities.

Yet collective equality is hard to define as a concept and to implement in practice, since it frequently involves groups of people who are unequal in number as well as in wealth. Let us try to define more closely this idea of equality, and see to what extent it is applicable to the two nations coexisting within the Canadian federal state.

2. Equality Between States in International Law

The concept of collective equality is most often applied to the relationship between sovereign states: equality being in fact a fundamental principle of international law. It is not of course a matter here of material equality, inasmuch as there is vast inequality in power as between states. The modern doctrine has in view rather an equality before the law: all states, whether large or small, possess the same rights and the same obligations. It is in this sense that the United Nations Charter is based "on the principle of sovereign equality of its members." Yet this equality is gravely infringed to the advantage of the great powers: special rights, such as the veto, go hand in hand with their special responsibilities.

This, clearly, is not the type of equality that the Laurendeau-Dunton Commission has in mind, since it adheres firmly to the perspective of a Canada united "in a common partnership." The Independentists, on the other hand, generally are in favor of just this kind of equality, which is the only one that in their view provides adequate guarantees for the future of Quebec. Indeed,

 

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the sovereign state holds certain advantages, in particular direct and unlimited access to international life: Quebec could well be driven to it by Anglo-Canadian refusal to recognize its equality within a new Canada. It should be noted, however, that—as the experience of a number of Asian and African states shows—formal equality does not necessarily bring with it material equality. States are not something one improvises: the lack of cadres may entail new forms of dependence, more subtle but no less real than the old ones, particularly in the proximity of the great powers.

3. Equality of Member-States of a Federation

A second application of the idea of equality that merits study is the one found, implicitly at least, in states of the federal type. Here the constituent entities (provinces, cantons) ordinarily enjoy full equality of rights in relation to each other, particularly as regards the extent of their powers and their representation in the federal upper House. This principle may be infringed upon, however; and there may be some variation in the bounds of the autonomy of the member-states, or else a factual inequality may arise as the result of a system of delegation of powers.

The application of such a principle of equality to the Canadian provinces and to Quebec in particular has traditionally been a basic policy of the Federal Government. It is this equality that some people are invoking when they insist that Quebec "is a province like the others."

This approach today is utterly unacceptable, since it contradicts the special status that we are demanding for Quebec. We want the national home of the French Canadians to be more than just one province among others

4. The Principle of Equality
as Applied to the Two Canadian Nations

What, then, is the nature of the equality whose recognition we are seeking? The Laurendeau-Dunton Commission speaks of the "equality of the two peoples" who founded the Canadian federation. Here is a concept whose implications may be vast, but one not easy to grasp. How far does such equality go? In the extreme case,

 

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as we have seen, it means independence, if one is to follow the logic of the principle of nationalities bequeathed to us by the 19th century and the Versailles Treaty.

The Commission approaches the matter with great caution in its Preliminary Report, which indeed is simply a diagnosis of our present crisis. The notion of equality which it puts forward (and to which there are scattered references in several chapters) strikes me as being very rudimentary. From Par. 6 and 139, one gathers that what is implied is the "cultural" equality of English-speaking and French-speaking Canadians as such. That is a praiseworthy objective—but a pretty slender one at a time when French Canada is demanding economic and social equality, nay more, a political equality that has yet to be clearly defined.

Or does the Commission think that "cultural" equality embraces all the other kinds (a thesis that can certainly be argued)? Some passages seem to suggest this, as when it is asked "how we can possibly reconcile the exigencies of cultural equality and parliamentary democracy in a country where the representatives of the two cultures are not equal in number?" (Par. 7) ; or that other passage where the question is raised as to what political system would make possible the achievement of cultural equality (Par. 134). But the Report provides no answer to these questions, and it is up to us to say what we mean by "equality" and what means would enable us to reach it. This, in my opinion, should be the new orientation of national thinking in the political realm.

5. Cultural Equality As Such

Real equality means first of all the possibility for each of the two nations to live its daily life in its own language. It means that French should be adopted as a language of internal communication in the public services at the federal level and in the provinces of New Brunswick, Ontario and Manitoba. In all provinces the minorities should enjoy rights in education equal to those of the English-speaking minority in Quebec: these rights to be guaranteed by the confederal constitution, with a proviso for intervention by the central government should violations occur. French primary and secondary schooling should of course lead to the possibility of higher

 

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education in that language: a French university needs to be established in the Canadian West, and the basis of the University of Moncton should be enlarged.

Yet this is no more than a fraction of the equality which we are seeking. The total development of the potential of French-speaking Canadians calls for more, inasmuch as the presence side by side in one political area of two ethnic collectivities, numerically and economically unequal, generally gives rise to a situation of dependence for the weaker one—even when cultural rights are accorded recognition.

6. Political Equality

Majority rule is in fact fully compatible with liberty and equality only if it operates within the framework of a homogeneous society. M. René Capitant, in the review Esprit, has dealt penetratingly with this problem. "If we Frenchmen," he writes, "find it hard to imagine that majority rule can be oppressive, it is because ours is an old and profoundly homogeneous nation. But in the case of other states, embracing diverse and unequal nations, the introduction of democracy has led to this dislocation . . ."

The phenomenon can be explained psychologically. Even when a political decision is taken which the citizen feels to be injurious to him, he is nonetheless able, in a homogeneous milieu, to identify strongly with the majority: he will, generally, accept their decision. Matters stand differently in a heterogeneous state: unable to identify with the majority, the minority may voice stubborn opposition to measures adopted by vote in the very name of democracy.

By means of federalism, it is possible to avoid in some measure a systematic counterposing of majority and minority interests. Just imagine what would be the situation of French Canadians today had we not regained in 1867 the Legislature which had been taken from us in 1840. Nevertheless, federalism and the degree of centralization or decentralization vary with time, place and the intensity of self-affirmation of the peoples involved: it is essentially a regime of equilibrium as between the centripetal and centrifugal forces operating within the state.

In Canada, federalism from the outset has implied centralization;

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and this trend was strongly accentuated following the economic crisis of the thirties. As a result, French Canadians have very often found themselves in a minority on matters involving their vital interests, including their social philosophy and outlook on life. In addition, by force of circumstance, English-speaking Canada has got hold of the controls of the federal administration and is still entrenched there in the form of the "Establishment." The French Canadian, if he does manage to make his way into this vast, alien machinery, feels lost there.

It is necessary, then, to "re-think" the federal institutions, both parliament and administration, in terms of the existence of the two nations. This will not be easy, since the majority is firmly resolved to hold on to the majority rule and "rep. by pop." secured in 1867. It is here that we face the choice between "associate states" or "special status."

The formula of "associate states," while it has yet to be given precise definition, would appear to mean a confederation of two sovereign states, united for certain limited purposes and delegating legislative powers to a sort of central diet. From this standpoint, one can visualize a mathematical equality of the two nations within all the confederal bodies; but it is hard to imagine how such a system would function in practice, and history provides not a few examples of failure in such an undertaking.

"Special status" is a more flexible concept. It would allow the establishment of equality in a certain number of areas where the rights involved have special importance for the minority, while at the same time permitting of a growing role for the State of Quebec.

At the level of the central bodies, the special status could mean a binational Senate having precise powers, for example in relation to minority rights, diplomacy, treaties and defense; it might also deal with the naming of ambassadors and of members of the Constitutional Court. The lower House could retain jurisdiction over finance, customs, inter-provincial transport and large-scale economic-planning, so long as French Canada was represented in an equitable way in all the administrative bodies that shape the country's financial, monetary and tariff policies. It is even conceivable that some public services might become wholly unilingual and only intercommunicate at the higher level, i.e., for the defining of general policy.

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7. Economic Equality

Cultural equality would remain quite abstract were it not to be based on the concrete equality of the two national groups at the economic level. A poor nation, in the 20th century, cannot attain the same level of literary, scientific, technical and artistic culture as one that has at its command great economic activity and monetary power. On the contrary, we witness on all sides examples where the culture of a wealthy nation inundates the countries with which it comes in contact -- a phenomenon that does not invariably contribute to the spiritual advance of civilization.

Now French Canada constitutes, in North America, a poor collectivity that has fallen behind, in terms of capital accumulation, to an extent that is not easy to overcome. Like many such groups today it is compelled to resort to the political institutions under its control (the provincial State) so as to compensate for this deficiency and plan its own long-range economic development. There can be no real equality for French Canadians without a Quebec that is largely autonomous in the economic field, while cooperating with the rest of the country for common progress: without a Quebec that is its own centre of decision in matters concerning its own development and the fixing of priorities in the social realm.

Let us add that economic equality does not mean that the less numerous group must possess a total wealth which is equal to that of the majority group. Equality here means equal productivity and equal average income of the members of the two groups. It means likewise that all are ready to bear part of the load in the event of a slowing-down of the economy, so that the unemployed are not all members of one group. It means, finally, that French Canadians and Anglo-Canadians get together on an overall dynamic policy beamed to social objectives.

* * *

Clearly, equality is not a concept that is easy to define or to implement. Above all it is important not to confuse abstract equality -- which on the theoretical plane can be carried very far, and which is being experimented with today by several new States -- with

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concrete equality, which is harder to achieve, but is the only kind worth seeking in a highly industrialized and interdependent world. This concrete equality of French Canada must be recognized rather rapidly, or else it may be tempted, like many another people, to place its trust only in the more abstract equality that is total sovereignty.

 

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-- This OCR was prepared by Kathleen Moore in August 2014 for the legal research purposes of Habeas Corpus Canada. --