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Old 10-02-2015, 02:56 AM
 
Location: Alberta, Canada
2,184 posts, read 1,759,319 times
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Quote:
Originally Posted by Acajack View Post
For example, the five demands of Robert Bourassa during the Meech saga were these:

- Quebec was recognized as a "distinct society" in Section 2 of the Constitution Act, 1867. This would operate as an interpretative clause;
What do you mean by "interpretive clause"? My copy of the Constitution tells me that Section 2 was repealed in 1893.

Quote:
- Most prospective constitutional amendments were now subject to s. 41 of the Constitution Act, 1982, which meant they required the approval of every province and the Federal government;
Yes, and this would give Quebec a de facto veto over everything. Quebec doesn't like something BC wants to change, and eight other provinces are on board with what BC wants? Quebec would withhold constitutional approval, and we'd get nowhere.

The "7/50" rule under s. 38 of the Charter is there for a reason. So is s. 41.

Quote:
- Provincial powers with respect to immigration were increased;
Quebec exercised its Constitution section 95 rights, which it has had since 1867. I'm not sure why this is a big deal.

Quote:
- Provinces were granted the right for reasonable financial compensation if that province chose to opt out of any future federal programs in areas of exclusive provincial jurisdiction;
I've conferred with colleagues on this matter, and read papers published in various Law Reviews, and I cannot come to a conclusion as to whether this would be good or bad for Quebec. For now, I'll concede this point to you.

Quote:
- The appointment of senators and Supreme Court justices, traditionally a prerogative of the Prime Minister, would be appointed from a selection of names provided by the specific province.
Supreme Court justices, you can have. Quebec gets three of nine--so one province gets three, and the other nine provinces get six combined. Yeah, that's fair.

Still, as a lawyer, I understand it. Our Supreme Court is a court of general appeal. Quebec uses civil law, so we must have Quebec jurists deciding private-law things, in matter such as wills, contracts, and so on, that arise out of Quebec.

No comment on whether Supreme Court justices must be bilingual, English and French. Well, maybe one: My own view is that they need to be more versed in the law, than another language. I say that as a lawyer. An extremely-qualified Supreme Court justice who only speaks English will do better for Canada as a whole; than one who is only kind-of-qualified but is bilingual.

I studied under recent SCC appointee Russell Brown. I can say that Professor Brown brings years of experience, plenty of knowledge in the law in both the academic and practice spheres, but I doubt he knows a lick of French. To claim Professor Brown is somehow unqualified because he does not speak French, does a disservice to the concept of law.

Quote:
These have been pretty consistent over several decades and numerous Quebec governments.

Of these five, only the one with respect to immigration has been addressed to a reasonable degree.
I'm waiting for Ontario, BC, Manitoba, Nova Scotia, and the rest to make similar demands. Until then, Quebec remains one of ten, and subject to the powers accorded it under the Constitution.

Last edited by ChevySpoons; 10-02-2015 at 03:37 AM..
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Old 10-02-2015, 07:03 AM
 
Location: Gatineau, Québec
21,962 posts, read 27,416,532 times
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Quote:
Originally Posted by ChevySpoons View Post

I'm waiting for Ontario, BC, Manitoba, Nova Scotia, and the rest to make similar demands. Until then, Quebec remains one of ten, and subject to the powers accorded it under the Constitution.
You've given a (correct) legal answer whereas the matter is also a political, and to some degree, socio-cultural one.
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Old 10-02-2015, 07:15 AM
 
Location: Gatineau, Québec
21,962 posts, read 27,416,532 times
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Quote:
Originally Posted by ChevySpoons View Post

Supreme Court justices, you can have. Quebec gets three of nine--so one province gets three, and the other nine provinces get six combined. Yeah, that's fair.

Still, as a lawyer, I understand it. Our Supreme Court is a court of general appeal. Quebec uses civil law, so we must have Quebec jurists deciding private-law things, in matter such as wills, contracts, and so on, that arise out of Quebec.

.
By jurisprudence, Ontario is also basically guaranteed three judges, BC one, the Prairies one and Atlantic Canada one.

I don't see how you can get around this requirement (in Quebec's case) given the different system of law. The highest court in the land needs expertise in that code of law if it's to be the top tribunal of appeal for it.

Another option I suppose is to have a supreme court of civil law that only deals with civil law cases from Quebec. I am not sure this would be satisfactory or workable, but it would resolve the perception of "unfairness" in addition to the bilingual question for the most part.

I leave up for debate as to whether this hypothetical civil law high court should be under the aegis of the federal government or the Quebec government.
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Old 10-02-2015, 08:10 AM
 
Location: Gatineau, Québec
21,962 posts, read 27,416,532 times
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Quote:
Originally Posted by ChevySpoons View Post

No comment on whether Supreme Court justices must be bilingual, English and French. Well, maybe one: My own view is that they need to be more versed in the law, than another language. I say that as a lawyer. An extremely-qualified Supreme Court justice who only speaks English will do better for Canada as a whole; than one who is only kind-of-qualified but is bilingual.

I studied under recent SCC appointee Russell Brown. I can say that Professor Brown brings years of experience, plenty of knowledge in the law in both the academic and practice spheres, but I doubt he knows a lick of French. To claim Professor Brown is somehow unqualified because he does not speak French, does a disservice to the concept of law.
.
The five Quebec demands I quoted are basically lifted from Robert Bourassa's shopping list during the Meech negotiations around 1990.

At the time, if I recall correctly there was no question of reneging on a widely accepted but unwritten "covenant" about the bilingualism of Supreme Court justices, and so it's not surprising that it is not mentioned.

Regardless of our views on whether all SC judges must be bilingual and the arguments for and against, one thing is certain is that it represents a departure (away from bilingualism) from the way things have been done, at least since I've been following Canadian public affairs. (Which is several decades at least.)
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Old 10-02-2015, 08:37 AM
 
Location: Gatineau, Québec
21,962 posts, read 27,416,532 times
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Quote:
Originally Posted by ChevySpoons View Post
What do you mean by "interpretive clause"? My copy of the Constitution tells me that Section 2 was repealed in 1893.
.
Sorry, what is meant is that the distinct society clause would be inserted into the current Constitution Act (1982) as an interpretive clause.

This was the exact wording:


[SIZE=1][SIZE=1]2.(1) The Constitution of Canada shall be interpreted in a manner consistent with

(a) The recognition that the existence of French-speaking Canadians, centred in Québec but

also present elsewhere in Canada, and English-speaking Canadians, concentrated outside

Québec but also present in Québec, constitutes a fundamental characteristic of Canada; and

(b) the recognition that Québec constitutes within Canada a distinct society."
[/SIZE]
[/SIZE]
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Old 10-02-2015, 05:11 PM
 
261 posts, read 203,491 times
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Quote:
Originally Posted by ChevySpoons View Post
Yes, and this would give Quebec a de facto veto over everything. Quebec doesn't like something BC wants to change, and eight other provinces are on board with what BC wants? Quebec would withhold constitutional approval, and we'd get nowhere.
As we've discussed before, it used to be considered the case that Quebec had a veto over constitutional changes, and more than once this caused proposed changes to be dropped because Quebec would not agree to them. This is obviously no longer the case since patriation, which is why Quebec definitely feels they lost something. And it means the other provinces can gang up against Quebec to force changes that would go against Quebec's interests. (Yes, I'm aware they can even more easily gang up against Alberta to force changes, but read the rest of my post to understand why this is more of a concern in the case of Quebec.)

Quote:
I've conferred with colleagues on this matter, and read papers published in various Law Reviews, and I cannot come to a conclusion as to whether this would be good or bad for Quebec. For now, I'll concede this point to you.
In any case it's a traditional demand.

Quote:
Supreme Court justices, you can have. Quebec gets three of nine--so one province gets three, and the other nine provinces get six combined. Yeah, that's fair.

Still, as a lawyer, I understand it. Our Supreme Court is a court of general appeal. Quebec uses civil law, so we must have Quebec jurists deciding private-law things, in matter such as wills, contracts, and so on, that arise out of Quebec.
I kind of like Acajack's proposition of a Quebec Supreme Court hearing cases having to do with the Quebec Civil Code. But I'd wager you wouldn't, since that's a very obvious example of asymmetrical federalism, something Canadians outside Quebec are allergic to. (And which I usually interpret as mistrust for what Quebec might do with any increased power over its own affairs. I guess there might be other explanations.)

As for why Quebec should get a say in the choice of Supreme Court justices, consider last year's case on whether Guy Nadon was qualified to sit on the Court. The prime minister appointed him to one of Quebec's seats, even though he wasn't a member of the Quebec bar, and the Court itself had to decide that he wasn't qualified and void his appointment. Now I guess you'll tell me this proves the system works. But the decision wasn't unanimous, and another Supreme Court might very well have decided otherwise. And then you'd also tell me that the decision was the correct one.

Quote:
No comment on whether Supreme Court justices must be bilingual, English and French. Well, maybe one: My own view is that they need to be more versed in the law, than another language. I say that as a lawyer. An extremely-qualified Supreme Court justice who only speaks English will do better for Canada as a whole; than one who is only kind-of-qualified but is bilingual.
I don't expect anglophones to really understand the need for bilingualism, but the fact is that it can in many instances be a qualification. In this case, since cases can be argued in English or in French, it will be hard for justices who aren't fluent in both languages to do their job in a satisfactory manner. Yes, translation exists, but court cases can hinge on very specific language that might very well be lost in translation. (If you've never had to rely on translations because everything's always been prepared in your own language, you may not be aware of how misleading translations can be.)

One thing I don't want to see is a case that has been argued in French until reaching the Supreme Court now have to be argued in English because some justices don't understand French. Yes, I'm sure it "works" in the grand tradition of Canadian bonne-ententisme, but that's something we're trying to get rid of.

Quote:
I'm waiting for Ontario, BC, Manitoba, Nova Scotia, and the rest to make similar demands. Until then, Quebec remains one of ten, and subject to the powers accorded it under the Constitution.
Yes, as Acajack said, you're legally correct. Quebec is only one of ten Canadian provinces, no different from any other, or as I'm sure you'd prefer saying, just as different from the others as all Canadian provinces are different from each other. But, as I'm sure you'll have to recognize, Quebec does have cultural and sociological attributes that do make it a different case from the other provinces. Yes, I know modern Canadian national identity is predicated on the notion that all provinces are equally distinct, and we all know that every suggestion that maybe Quebec is somewhat different in some sense is always answered with "are you suggesting Alberta and Newfoundland are the same thing!?" and paeons on Canadian diversity which Quebecers are supposedly completely unaware of. (Here we even see the suggestion that it's Quebecers who are indistinguishable from Americans, apart from speaking French.) But this sort of "symmetrism" which I've also discussed in the case of official languages (Canada has two official languages, one that's the majority in part of the country and the minority in another part, and the other way around for the second one, and they're comparable in every way and the same policies should be applied to both) ignores political and sociological reality as well as history.

The fact is, most Canadians and even most provincial governments don't have any issue with Canada's federal regime. Only in Quebec is it an issue. Now I guess one could say that's because we're a bunch of whiners (and around here they aren't shy about saying this). But it may also be because there's something about the nature of Quebec that makes the current framework not work in its interests, while it does for other Canadians.
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