Distinct Society - The Meech Lake Accord

The Meech Lake Accord

The Meech Lake Accord, proposed (but never enacted) amendments to the Constitution from 1987 to 1990, would have inserted the phrase "distinct society" into the Constitution Act, 1867 as part of the new section 2 of that Act (the original section 2 of the Act had already been repealed; currently there still is no section 2). In doing so, the Accord would have recognized the difference of Quebec from the rest of Canada, and perhaps implicitly recognized Quebec as a nation. As author Marjorie Bowker wrote, it was primarily a reference to Quebec's "laws, its language and its culture." The National Assembly of Quebec was then referred to in the Accord as having the power to protect Quebec's distinctiveness.

It is controversial as to whether Quebec can be referred to as a nation, and the use of that word in the official papers of the Accord would have probably doomed its approval in the rest of Canada. However, the "distinct society" euphemism itself seems to have shocked English Canadians, partly leading to the demise of the accord in the other provinces. Some critics, such as the Reform Party of Canada, saw it as granting special status to Quebec, which offended their vision of Canada in which all provinces are equal. Others feared that if the National Assembly was empowered to promote Quebec's distinctiveness, a provincial government might decide Quebec must secede in order to keep its distinctiveness.

Quebec Premier Robert Bourassa of the Parti libéral du Québec was a major advocate of the distinct society clause. He regarded it as granting Quebec powers that were vague and thus within the Quebec National Assembly's power to help determine; indeed, what makes Quebec distinct could change in the future, and the distinct society clause would still recognize Quebec's progress. The Prime Minister of Canada, Brian Mulroney of the Conservatives, however, had lower expectations for the legal change it signaled. It was revealed in The Secret Mulroney Tapes that he told Newfoundland Premier Clyde Wells that "distinct society" "means dick."

Hogg was also confident the distinct society clause signalled little legal change. As he wrote in 1988, the distinct society clause is "an affirmation of sociological facts with little legal significance." He believed it was merely a reference to the fact that Quebec is the only province where most Canadians speak French rather than English and that Quebec is the only jurisdiction in Canada that practices civil law rather than common law. The only place in the Accord where he saw Quebec's distinct society given real substance was in the other provisions, as Quebec would gain more powers in regard to immigration. Hence, the only way Hogg saw the distinct society clause as having legal effect would be in how to read the rest of the Constitution, although he did not expect that adding a "distinct society" clause would have much practical impact. Rather than giving Quebec powers, he thought, the distinct society clause would recognize that Quebec already has powers that promote distinctiveness (e.g. educational powers), and, just as before the Meech Lake Accord, the use of these powers, even to protect the distinct society of Quebec, would be limited by the Canadian Charter of Rights and Freedoms. While the Quebec government could infringe upon a right by saying Quebec's distinctiveness is a sufficient reason to do so under section 1 of the Charter, section 1 would still demand the infringement is minimized.

The Accord also recognized that the distinct society clause did not undermine Canada's multiculturalism (protected under section 27 of the Charter) or Aboriginal community (protected under section 25 of the Charter and other constitutional provisions).