Trudeau le Québécois

Everyone’s wondering, yet again, what Justin Trudeau’s game is in Quebec. I doubt he’d have it any other way. Here’s my best attempt to discern the Prime Minister’s thinking on what will probably be the main battlefield of the next federal election. I will need to go into some detail. Settle in.

I met Trudeau in Montreal in 2003. This was during the period when, as the Prime Minister’s Britannica bio puts it, he “began and then abandoned engineering studies at the University of Montreal… pursued but did not complete an M.A. in environmental geography at McGill… worked at a Montreal radio station… had a role in the television miniseries The Great War” and, “perhaps most significantly… served as the chairman of the board of directors of Katimavik.”

A few days after I met and interviewed him in Montreal, Trudeau became the bottom half of the second column I ever wrote for this magazine. He had pulled a nerdy publicity stunt: as a juror on the CBC radio book show Canada Reads, he had abandoned the novel he was there to champion, Wayne Johnston’s The Colony of Unrequited Dreams, and voted instead in the final round for the novel Johnston’s was competing against: Hubert Aquin’s Prochain Épisode, translated as Next Episode.  It was news of a sort, because Trudeau was a Trudeau and Aquin was an early committed Quebec separatist who helped found one of the Parti Québécois’s precursor parties, flirted with terrorism and ended up killing himself. 

A Trudeau signing up to defend a separatist? Partly he just liked the effect. At his best, Trudeau can be quite self-aware. “There was a playfulness there,” he said. But he also loved Aquin’s book, certainly more than I did. “Aquin is all about things that you want desperately and passionately but can’t follow through on—not so much for external reasons as for your own internal reasons,” he said. “I mean, it’s Hamlet.”

All of which is to say that Justin Trudeau has long had—and enjoyed being seen to have—a less confrontational attitude toward Quebec nationalism than his father, Pierre Trudeau.

Sometimes it comes out at odd angles. The younger Trudeau isn’t a theorist. In 2012 he said that if he came to believe Canada “was really the Canada of Stephen Harper” he might “think of wanting to make Quebec a country.” In 2017, after he’d been Prime Minister for more than a year, he refused to answer English questions in English at a town-hall meeting in Sherbrooke. He later apologized. This latter mind glitch was no more impressive to nationalist francophone Quebecers of my acquaintance than to anyone else. But I think he meant well?

Trudeau’s relationship with francophone Quebec has never been easy or automatic. Of course people connect him to his father, but his mother’s family was a fixture of Vancouver politics and society. He lived at an Ontario address, 24 Sussex Drive, until he was nearly 14. Later he lived for significant stretches of time in Whistler and Vancouver as a young adult. I think the second time I met him, he said one reason he took that Montreal radio gig was that his spoken French needed brushing up. He still gets ridiculed here and there on Twitter during French-language leaders’ debates for his lapses of grammar and syntax. In his memoir Common Ground, which is the Canadian political equivalent of Stephen Hawking’s A Brief History of Time—it’s on a lot of bookshelves, but not a lot of people have actually read it—he mentions that his “political style” was “profoundly influenced” by his wife Sophie, partly because she has “a deep, intuitive understanding of Quebec.”

It makes sense that Trudeau would mention his spouse’s “understanding of Quebec” in a specifically political context. Quebec often features prominently in his political calculations. Think of SNC Lavalin: Jody Wilson-Raybould said she was repeatedly told the trial had to be short-circuited because elections were coming up, and Liberal seats were on the line. Not just the federal election, but also the provincial election in Quebec. None of the staffers who could have confirmed or contradicted Wilson-Raybould’s claim were permitted to testify at committee or to the ethics commissioner.

Of course Trudeau shares this Quebec preoccupation with many other national party leaders. Trudeau I, Mulroney, Chrétien, Paul Martin: Each believed they had found the correct way for integrating Quebec into their Canadian project. Each devoted disproportionate energy to Quebec. Each came to grief over their Quebec obsession and, if they’d known that’s what would happen, still wouldn’t have changed much. Stephen Harper was actually not much different. Hence the way he began almost every public remark in French, the small symbolic concessions (Harper became the first Prime Minister in decades to visit a premier in Quebec City rather than insisting the meeting happen in Ottawa), and of course the astonishing decision to recognize “the Québécois” as “a nation” via a parliamentary resolution.

Nor has Quebec been only the obsession of prime ministers. The NDP spent decades trying to get noticed and taken seriously in Quebec, always advocated an asymmetrical federalism, made countless anglos labour through French questions in the Commons, before Jack Layton and Thomas Mulcair achieved the 2011 breakthrough that gave the party its largest-ever share of votes and seats. Andrew Scheer and Erin O’Toole have sought to keep the Conservative Party viable in Quebec, often at considerable cost to their dignity. The reason for this preoccupation is largely pragmatic: Quebec has 78 seats, most of them have swung from one party to another several times since 1984, so it’s the biggest wild card in the game. Everyone thinks they can win. Everyone’s worried another party will get momentum there. So everyone overthinks Quebec.

Back to Trudeau. He’s actually sometimes been a conspicuous dissenter from Quebec conventional wisdom during federal elections. In 2015, veiled voting became an election issue, thanks to a last-ditch attempt by the failing Harper Conservatives to echo some secularist rhetoric from the Parti Québécois. The NDP’s Tom Mulcair hesitated before diverging from the Quebec consensus and lost his lead. But Trudeau stood against the Conservative/Bloc/Journal de Montréal position from the outset. The Liberals won more seats in Quebec than any other party all the same. In 2019, the test was Quebec’s Bill 21, which bans most provincial public servants from wearing religious symbols on the job. Trudeau alone declared a willingness to challenge the bill in court. (To date he hasn’t followed through.) Some thought his stance risky. It didn’t stop him from winning a plurality of Quebec seats, again.

But in an election likely to come this autumn, Trudeau would like to pick up, let’s say, another 10 seats in Quebec. He’s already on track to pick up six, according to one projection, mostly because the Bloc Québécois vote has softened. Those winnable seats are generally outside Montreal, overwhelmingly francophone, and in places where most people didn’t vote Liberal the last two times. So this year Trudeau seems to be preferring honey to vinegar.

First, there is the traditional spreading of the largesse. Trudeau has travelled to Quebec twice in recent months to make joint announcements with François Legault. On March 15 they were in St. Jérôme to announce money for electric bus batteries. A week later Trudeau and Legault were in Trois-Rivières, which the Liberal candidate lost to the Bloc by only 2.4 percentage points in 2019, to split an $826-million tab for high-speed internet for 150,000 households. That’s $5,500 per house.

But there’s also been a multi-front campaign to appeal to Quebecers in cash-free ways. In February Melanie Joly, the minister for official languages, released a proposal for sweeping reform to the Official Languages Act that made no show of equal treatment of French and English. “The use of French is declining in Canada and its vitality is a cause for concern,” Joly’s opening “statement from the minister” said. “We recognize that French is a minority language compared to English and that we have an increased duty to protect it.” The package didn’t get a lot of coverage, but the Official Languages Commissioner did worry Joly was being too hard on Quebec anglophones, which I suspect had them popping champagne bottles in more than a few Trudeau Liberal Zoom meetings. The goal is to be the rare Liberal government that’s seen to be rowing in the same direction as the Quebec government on language, rather than trying to block it. The Liberals hope to compress the Bloc and Conservative vote in Quebec next time. The Bloc exists to outflank the Liberals on francophone Quebec nationalism. Erin O’Toole has been trying to do the same. From this perspective, ticking off the language commissioner is a feature, not a bug.

Similarly, there’s no way to understand Steven Guilbeault’s crusade against the “Web giants”—embodied in Bill C-10, which would extend the CRTC’s regulatory ambit to the internet—without watching how it’s playing in Quebec. To caricature and oversimplify: Outside Quebec, Guilbeault is increasingly seen as a stumblebum who’s “unable to respond coherently to basic questions.” Inside Quebec, he’s a rock star whose PMO minders are still, today, giving him very wide latitude. If you live in French in Quebec, you’re way likelier to view the internet as an unending avalanche of English, and to support any means for diverting Google’s and Netflix’s revenue to Quebec’s French-language cultural industries. Other federal ministers from Quebec aren’t distancing themselves from C-10; quite the contrary. Meanwhile Quebec’s National Assembly voted unanimously to support C-10. It may be the first time in 60 years the National Assembly has voted unanimously in favour of anything anyone named Trudeau has done. Suddenly the Bloc Québécois is offering to help rush the bill through passage before an election. It’s self-preservation: if Trudeau gets to go out on the campaign trail and say, “I tried to protect our culture but the Bloc and the Conservatives wouldn’t let me,” it won’t be a great day for the Bloc.

So. Judiciously distributed cash; Joly’s language reform; Guilbeault’s Quixotic quest. All of which brings us, at last, to Bill 96, François Legault’s sweeping update to Quebec’s language law; to the bill’s proposed constitutional amendment; and to Trudeau’s chill response.

There’s a lot in Bill 96, and even moderate Quebec anglophone groups don’t like it. There’s a debate worth having over the entire package, but as a matter of federal politics, the main event is a proposal to amend the Canadian Constitution—unilaterally, through the action of Quebec’s National Assembly acting alone—to declare that Quebec is a nation and that its “only” official language is French.

Here I must get into a level of detail that thrills veterans of the Constitutional Wars, 1981-1999, and will threaten to incapacitate everyone else. Sorry. It’s the times.

This would not be a bilateral amendment, like the 1997 amendments abolishing religion-based school boards in Newfoundland and Labrador, and in Quebec. Those took place via S. 43 of the 1982 Constitution Act, 1982. That path requires that identical resolutions pass the Senate, the House of Commons, and the legislature of the concerned province. Ottawa’s cooperation was not automatic. Stéphane Dion consulted widely in each province. The Quebec government of the day, and the Bloc Québécois, were not pleased. Dion didn’t mind. In the end Quebec got its amendment—and because it had agreed with the federal Parliament on specific wording with clear judicial consequences, the amendment had weight.

This is not that. Legault and his smart, ambitious minister for the French language and four other portfolios, Simon Jolin-Barrette, want to use S. 45 of the Constitution to pass their amendment. Here’s S. 45:

“45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”

Section 41 says that for most amendments you need at least 7 provinces [UPDATE, Thursday: So close. In fact, S. 41 says you need all the provinces. Section 42 is the general, or 7-province, formula. One gets rusty after a while. – pw] to agree. The subjects listed in S. 41 include, “subject to section 43, the use of the English or the French language.” And S. 43 is the one Dion and two provinces used in 1997, a bilateral process involving Parliament and a provincial legislature. These are required, say all the sections around it, for “any amendment to any provision that relates to the use of the English or the French language within a province.”

François Legault and his minister don’t want to do this. They want to amend Quebec’s “constitution” to declare that Quebec is a nation whose only official language is French, without using the process that is required for “any amendment to any provision that relates to the use of the English or French language” within their province.

It follows that they don’t want to amend any provision relating to the use of English and French in Quebec. Are there any such provisions elsewhere in the constitution? You bet: over here, for instance, we have S. 133, which holds that English and French have equal footing in Quebec’s legislature, its courts and its laws.

Trudeau’s reaction to Bill 96 astonished many observers. “It is perfectly legitimate for a province to modify the section of the Constitution that applies specifically to them and that is something they can do,” he said, “while ensuring, of course, that the rest of the Constitution, including the sections that protect linguistic minorities, like anglophones in Quebec, continue to be respected.”

It’s fair to say the first half of that long sentence drew more attention and raised more eyebrows. Quebec wants to re-open the Pandora’s box! The intermittently sovereignist-ish premier of Quebec! To say Meech-y things! (Kids: ask your parents.) And the Prime Minister of Canada, whose name is actually Trudeau, is asleep at the switch! Cue many agonized column-inches from the dwindling number of columnists who are even older than I am, and whose constitutional-war muscle memory remains finely honed. This from André Pratte is representative.

I, on the other hand, am inclined to see things Trudeau’s way. It’s been a while, but sometimes it happens. It is always handy to read the fine print, especially when the fine print actually occupies the same sentence as the headline stuff. It’s “perfectly legitimate” to do the unilateral thing—while ensuring that “the rest of the Constitution, including the sections that protect linguistic minorities… continue to be respected.” Maybe he meant that part. It’s been a while since I could muster a hearty endorsement of this Prime Minister on any file, but, I mean, sometimes he means what he says?

And the thing is, as we’ve seen, this isn’t only what Justin Trudeau says. It’s what S. 45 itself says—Jolin-Barrette’s chosen instrument for consummating his constitutional equivalent of a Vegas wedding. It says a province can do anything, “subject to” the bit that says it can’t touch “the use of the English or French language,” “subject to” another bit that says it can’t touch “any provision that relates to the use of the English or French language” in a province.

Here is my best attempt to understand the expert advice the Prime Minister would have received on this topic. The courts have long used a technique called “reading down” when a sweeping assertion in one law bumps up against a specific provision in another. Especially when the sweeping assertion might seem to exert jurisdiction that is specifically limited elsewhere. And especially when the specific limits are constitutional. A judge who is “reading down” a statute simply declares that, while the general language sounds nice, of course it is meaningless where expressly and specifically limited.

That’s what happened at the end of this 20-year challenge to Bill 99, a similarly witty attempt by a previous Quebec government to list “fundamental prerogatives” of the “Québécois people.” A federalist group in Quebec challenged the law as a blueprint for unilateral secession. A lower court in Quebec upheld the law, using what struck me as terrible reasoning. The Quebec appeals court upheld it too—but the judge said, in effect, no part of the law would have any effect to the extent it came into conflict with other Canadian laws. In effect, the judge read down Bill 99 to say it’s valid as long as it’s meaningless, and no further. Of course Simon Jolin-Barrette was delighted. He seems easy to please.

The parallel isn’t perfect. But consider a judge who’s asked to weigh the meaning of a declaration, on the one hand, that French is Quebec’s only official language; and on the other, a list of the Quebec government’s obligations regarding the English language, which has had constitutional status in Quebec since 1867. Consider, as this judge would, that Legault’s government could have sought the approval of a majority of provinces, but didn’t bother. That it could have sought the approval of Parliament, but didn’t bother.

I don’t think there’s much to be worried about here.

My discussion of Bill 96 here has been a bit of a long haul. Sorry. Maybe I can simplify it by saying that, in constitutional amendments as in much else, you get what you pay for. Work and patience and accommodation buy solidity. Stunts buy stunts. Confederation followed a 27-year dry run that began with the 1840 Act of Union and ended with multilateral constitutional conferences in Quebec, Charlottetown and London. Pierre Trudeau’s 1982 constitutional repatriation capped 16 years of sustained engagement. Pundits are welcome to harp on the so-called Night of the Long Knives; six thousand days and nights came before it.

Now along come Legault and Jolin-Barrette with what are essentially tweets. I had great fun reading over the weekend what happened when Jolin-Barrette told a reporter for Le Devoir that his new proposed clauses would stand up to any of the older language in the constitution and, indeed, crush it. Benoît Pelletier, a leading constitutionalist who was Jean Charest’s minister for intergovernmental affairs and who advised Jolin-Barrette on this package, said, hang on, I’m not sure that’s true. Another prof, Marc Chevrier, says he’d be astonished if the new language has any legal effect. And, I mean, Le Devoir is supposed to be the place where projects like this get an easy ride.

I come to the end of my tale. Old battlegrounds have a way of reviving old reflexes, but reflexes are just reflexes, and we are allowed to think instead. It was clear, long before Legault and Jolin-Barrette came along, that Justin Trudeau wants to win big in Quebec next time. But wanting to win is no guarantee of being wrong.