Comparative Political Studies Volume 39 Number 4 May 2006 441-462

10.1177/0010414005276665Comparative Political StudiesErk / Canadian Federalism and Public Policy

“Uncodified Workingsand Unworkable Codes”Canadian Federalism and Public Policy

Jan ErkUniversity of Leiden, the Netherlands

The discrepancy between the written constitution and the day-to-day workingsof the Canadian federal system is noted by a number of observers. However,there is yet no general theory that seeks to explain why de jure constitution andde facto practice diverge from one another. This article proposes an explana-tion based on the ethnolinguistic social structure. The workings of the federalsystem are best observed in the field of public policy where the constituent lin-guistic/cultural communities of Canada function as default demoi, bypassingthe formal structures of the federation. This process is particularly visible ineducation and media where identity politics find their first outlet. As a result, inthe absence of formal recognition, the duality of the Canadian society tends toreveal itself through the workings of the system.

Keywords: comparative federalism; Canadian federalism; constitutionalpolitics; public policy; Québec and Canada

But an observer who looks at the living reality will wonder at the con-trast to the paper description. He will see in the life much which is notin the books; and he will not find in the rough practices many refine-ments of the literary theory.

—Walter Bagehot (1867/1963, p. 59)

Since Walter Bagehot’s above observation on the British Constitution,many students of constitutional politics continue to draw attention to

the discrepancy between the written constitution and the day-to-day work-ings of political systems. A student of Austrian constitutional politics, Anton

441

Comparative Political StudiesVolume 39 Number 4

May 2006 441-462© 2006 Sage Publications

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hosted athttp://online.sagepub.com

Author’s Note: The author thanks David R. Cameron, Rafaelle Iacovino, Steve White, and theanonymous reviewers for their comments and suggestions. All translations are the author’s; orig-inal texts can be made available on request.

Pelinka (1971), calls this phenomenon the difference between “rechtloseWirklichkeit und wirkungslose Recht” (uncodified workings and unworkablecodes; p. 14). Similar observations highlighting the distance between the let-ter of the law and actual practice are put forward in the context of otherdemocracies of the industrialized West as well (Bogdanor, 1988, p. 5;Glaeßner & Reutter, 2001, p. 18; Johnson, 1977, p. 32; Lane, 1996, pp. 11-15). However, most such arguments are made in case-specific terms. That isto say, there appears to be no broad theory that explains why de jure constitu-tion and de facto practice diverge from one another.

This article aims to provide a theoretical explanation that can work acrossvarious cases. This will be done within the context of Canada. Focus is onhow the Canadian federal system tends to bypass the federal constitution andworks asymmetrically based on the constituent linguistic/cultural communi-ties. In this context, the study seeks to highlight the role played by the under-lying social structure in determining the operation of federal systems. Byextension, the study also seeks to show how such practices exert pressures onthe political institutions to change in this direction—even if such pressuresdo not always translate into large-scale institutional change. It is argued thatthe field of public policy contains the answers to the true workings of a politi-cal system. The two ideal models of federal state and unitary state may beuseful benchmarks to evaluate constitutions, but a deeper understanding ofthe functioning of the system can be attained by looking at public policies.

In general terms, an examination of the field of public policy would likelyshow that the workings of a unitary state with territorially based ethno-linguistic diversity might be less unitary than what the institutional setupconveys. That is to say, such diversity often leads to the division of nationalpolicies into linguistic halves. Many observers point out the division of pub-lic policies into linguistic halves in Belgium until 1993, when the unitarycharacteristics of the constitution were finally eliminated (Carette, de Groof,Peeters, & Vermeire, 1993; Erk, 2003a; Servaes, 1998). Swiss experiencefollows the same pattern as the field of public policy tends to reflect the con-stituent ethnolinguistic communities of Switzerland rather than the 26 can-tons (Kriesi, Wernli, Sciarini, & Gianni, 1996; Trechsel, 1995; Weibel,1997). Evidence shows that particularly in cultural policy areas such as edu-cation and media, Swiss public policies function in linguistic halves inde-pendent of the structure set up by federal demarcations (Erk, 2003b).

William Livingston is the first student of federalism to highlight the rolethat territorially based diversity played in federal systems. Livingston (1952,p. 84) uses the term federal society to denote this phenomenon. A number ofobservers expand on Livingston’s insight and elaborate a definition of fed-eral society based on “territorially based communities which are clearly dif-

442 Comparative Political Studies

ferentiated by language and ethnicity” (Stein, 1971, p. 34; see also Tarlton,1965, p. 869). This logic works in the opposite direction as well when fed-eral institutions are in place in a society characterized by ethnolinguistichomogeneity—a “nonfederal society” in other words. In this case, pressureis toward nationwide public policies. In such federations, the workings of thesystem might be more unified than what the constitution suggests becausepolicies under substate jurisdiction are often standardized, leading to de factonational policies. The Federal Republic of Germany is an example (Helms,2002; Hesse, 1962). Evidence suggests that in Germany, the jurisdictionaldivision of responsibilities is often of secondary importance because issuesare couched in nationwide frames of reference. This leads to a general ten-dency for public policies to be debated in national terms and subsequent har-monization and standardization (Erk, 2003c, 2003d). Similar patterns areobserved in Austria as well (Erk, 2004; Öhlinger, 1988; Pernthaler, 1988).

The way public policies function tends to be the immediate reflection ofthe underlying social structure. Thus the differences between federationswith federal and nonfederal societies are best observed in this field whereethnolinguistic divisions tend to influence and delimit political choices. As acombination of a number of factors, language has emerged as the predomi-nant social demarcation in the industrialized West since the end of the WorldWar II.1 In this context, linguistic cleavage has come to work as the socialbase for demarcating the borders of collective identity. According to Frenchsociologist Dominique Schnapper (1994), “Language is an ethnic marker,but it is also the essential instrument through which democratic life is insti-tuted and maintained” (p. 141). The role of language communities in provid-ing the public space for democracy is noted by a number of other observers aswell. For example, Margaret Moore (2001) argues that “in order to be a well-functioning national community, there has to be some form of common pub-lic life, a common framework of laws and a forum in which debates can takeplace” (p. 49). A similar point is made by Brian Barry (1991): “For demo-cratic politics to work, the citizens must be able to communicate with oneanother, and must have access to the same forums of political debate”(p. 178). According to Jeremy Webber (1994), “Language tends by its verynature to define the boundaries of political community. Language has thiseffect because, in addition to being a subject of public debate, it is themedium through which public debate occurs” (p. 200). Webber believes that

Erk / Canadian Federalism and Public Policy 443

1. The predominance of language as a social demarcation depends on the decline of other sig-nificant social cleavages in terms of their political relevance. Decline in class voting is one suchdevelopment (see Clark & Lipset, 2001; Evans, 1999; Korpi, 1983). The decline in religion as apolitically salient cleavage related to the increasing secularization of Western societies is the sec-ond development (see Martin, 1978; Mol, 1972).

“there is thus an inevitable tendency towards autonomy in our linguisticallydefined political debates” (p. 204). Consequently, linguistically demarcatedpublic spaces become essential as forums of democratic deliberation. In thiscontext, the linguistic community comes to perform the role of the defaultdemos (i.e., the collectivity that functions as the primary base for democraticpolitics). This is the collectivity for which public policy decisions are made; acollectivity that demarcates the frame of reference employed by politicalactors. This does not mean that the political choices are preset for the linguis-tic communities because many political issues deeply divide linguistic com-munities, but these issues are deliberated within these linguistically demar-cated public spaces. Decision makers might disagree about the substance ofthe policies, but they share the choice of venue. In other words, languagecreates a distinct public space creating an “us” community in which politicaldeliberations take place.

In case of a discrepancy between the ethnolinguistic societal structure andthe political structure, public policy concerns exert pressure toward congru-ence by demarcating the social collectivity for which policies are made.There is pressure toward congruence whenever these collective boundariesdo not coincide with the jurisdictional boundaries of political institutions.This should not imply that the institutional structure set up by the constitu-tion is unimportant. There are pressures toward institutional change to reflectthe social structure, but large-scale reforms might stall in the face of politicalintransigence. So when institutional reconfiguration is unattainable, changeis reflected through the workings of the system. In this context, tactical deci-sions concerning public policy are of course constrained and influenced bythe institutional setup, but the broad choices made by political actors ema-nate from the social structure. Thus the institutional structure functions onlyas a filter between broad structural variables and outcomes.

Limits to institutionalist perspectives are increasingly recognized byobservers on the field (Luong, 2002). There seems to be growing dissatisfac-tion with the inability of institutionalist perspectives to explain change. Thisis because of the emphasis institutional/constitutional perspectives place oncontinuity. Richard Simeon (1989) points to the limitations of such ap-proaches in the study of Canadian federalism:

We have not done a very good job theorizing about change in the federal sys-tem. . . . Clearly institutional models alone are insufficient, since these changeshave occurred . . . within an essentially unchanged institutional framework. . . .But to fully explain change we are driven to revive our interest in societalforces and in political economy. (pp. 418-419)


Jonas Pontusson (1995) echoes this observation: “The problem of explaininginstitutions—why they differ across countries and how they change overtime—brings out the limits of institutionalist analysis most clearly” (pp. 137-138). According to Pontusson, “To understand the impetus for change, weneed to analyse the process whereby ‘extra-institutional’ forces reshape theinterests of powerful actors” (p. 142). The study of public policy—as a linkbetween institutional and social structures—can help identify these macro-extrainstitutional tendencies at play and thereby reflect political reality moreaccurately. Put differently, the field of public policy is more likely to indicatethe uncodified workings of a political system and the subsequent pressurestoward institutional change.

The discrepancy between the uncodified workings and the unworkablecodes of the constitutional order of the Canadian system is well documented.In a recent piece, Jennifer Smith (2003) demonstrates the wide variety ofsuch cases in the Canadian federal system. These range from the dualistworkings of the 1840 Union Act, to the discrepancy between the power of theSenate on paper and its real political clout. The distance between written con-stitution and actual practice in the Canadian federal system is recognized byother observers as well (Gagnon, 1991, p. 63; Hurley, 2002, p. 149). Mostobservers tend to point out that the centralism inherent in the British NorthAmerica Act of 1867 (BNA Act) failed to work in the face of practical reali-ties such as linguistic divisions and geographical size. Another area wherewhat appears on paper is not always what takes place in practice is the field ofpublic policy.

In his study on the welfare state and Canadian federalism, Keith Banting(1987, pp. 171-182) notes that institutional and constitutional patterns arenot very helpful in understanding how the field of public policy works.Banting’s focus is mostly on social policies, but his observation could beextended to other policy areas as well. In particular, there appears to be a visi-ble difference in the way the nine English-speaking provinces and Québecapproach public policies. Will Kymlicka (1998) describes the attitudes to-ward federalism and public policies in English Canada the following way:

Survey data has repeatedly shown that most English-speaking Canadians haveno principled commitment to respecting the existing constitutional division ofpowers. On the contrary, their expectations and attributions of responsibilityare naturally directed to the federal government even in areas of provincialjurisdiction (the most commonly cited area for federal action is education), andthey would support federal intervention in almost any area of policy so long asit provided good governance. (p. 37)


Kymlicka’s (1998) point is supported by the final report of the Citizens’Forum on Canada’s Future (1991). In the provinces of English Canada,respondents declared that they were in favor of a stronger federal govern-ment.2 Yet in Québec, the majority of respondents expressed support formore provincial powers. Andrew Petter’s (1989, pp. 449-455) research onfederal spending power corroborates this asymmetrical picture. Petter noteshow little controversy increasing federal involvement has created outsideQuébec. In a similar manner, in an article summarizing the results of theirrecent polling survey, Fred Cutler and Matthew Mendelsohn (2001a) con-clude that “Canadians outside Québec have little attachment to particulardivisions of powers in the BNA Act. . . . They have little respect for the classi-cal federal principle and little interest in attempting to implement ‘watertightjurisdictions’” (p. 29). Cutler and Mendelsohn (2001b) expand on this pointin an op-ed piece they wrote for the Globe and Mail:

Overall, our survey results show that Canadians have no deep commitment tothe principle of federalism, have little knowledge of the existing division ofpowers, and care little about which order of government exercises whichpower. In important policy areas they care about results, and they see coopera-tion between governments as best able to achieve this. (p. A-11)

These tendencies exist even in Alberta, which has had successive provincialgovernments that adhered to a strongly decentralist notion of federalism inCanada (Gibbins, 1998; Henry, 2002). But a survey of the Alberta electorateshowed that the majority does not care about federal-provincial division ofresponsibilities as long as the job gets done (Elton, 1977, pp. 58-60). In Qué-bec, on the other hand, issues of jurisdictional control still dominate the poli-tics of the province and its relationship with the rest of the country. The con-tents of public policies mean less because battles are fought along issues ofcontrol. To quote Kymlicka (1998) once again,

Having the ability to collectively debate and determine policies on issues thatmatter to them is not just a symbol of Québécois nationhood, it is the substanceor practice of nationhood. Having developed a strong sense of national iden-tity, Quebecers want to act together as a political community—to undertakecommon deliberations, make collective decisions and cooperate in politicalgoals. They want to make these decisions with each other, not because theirgoals are different from other Canadians, or from Americans or Belgians, butbecause they have come to see themselves as members of the same society,


2. Even in Alberta—where the provincial government tends to distance itself from federalinitiatives—more than 60% of the respondents expressed support for a stronger federal govern-ment (Citizens’ Forum on Canada’s Future, 1991, Figure 2, p. 158).

and, hence as having responsibilities to each other for the ongoing well-beingof that society. That is just what it means to think oneself as forming a nation.(pp. 31-32)

However, constitutional reform in the direction of recognizing the dualityof the Canadian political system has constantly failed in the face of politicalintransigence. According to Kenneth McRoberts (1997, pp. 55-76), officialbilingualism and the Charter of Rights and Freedoms promoted by PierreTrudeau’s Liberal governments are partly responsible for the strong opposi-tion from English Canada. The aim of such policies had been to build a bilin-gual and multicultural Canadian nation from coast to coast, replacing theduality of Québec versus the rest of Canada. The result has been a publicaversion within English Canada to practices of dualism, which has come tobe seen as the special treatment of Québec and élitist. Such views have beenlargely responsible for the demise of the Meech Lake Accord that sought tocodify some aspects of dualism. In response, Quebecers attempted to take theinitiative and declare sovereignty, but the 1995 referendum—like its 1980predecessor—failed to deliver majority support. In the face of institutionalnonrecognition, dualism continues to influence the workings of the system inthe field of public policy. The division of the public space into two linguistichalves is particularly visible in the two policy areas where identity politicsloom large (i.e., education and media).

Media

Radio broadcasting in Canada started off in a legal vacuum, as it was notclear under which level of government this new policy area fell. In 1929, aroyal commission was set up to examine radio broadcasting. The prevailingtendency within the Aird Commission—named after its chairman—was inthe direction of national broadcasting policy. But during the deliberations ofthe commission, Québec passed its own bill on radio broadcasts, which wasto be followed by additional legislation 2 years later in 1931. As the questionof political control of airwaves began to emerge, the federal governmentreferred the question to the Supreme Court of Canada, asking if Ottawa hadjurisdiction to regulate and control radio communication. The BNA Act wasnot clear on which level of government had constitutional prerogatives in thisfield. The case was then referred to the Judicial Committee of the PrivyCouncil in London—which was the final court of appeal in Canadian lawuntil 1949. The Judicial Committee of the Privy Council ruled in favor ofOttawa based on the residual competences of the federal government to leg-


islate for “peace, order and good government” in areas not explicitly listed inthe BNA Act.

Based on this ruling, the federal government established the CanadianRadio Broadcasting Commission in 1932. After a brief experiment withnational broadcasts with French-language segments, the Canadian RadioBroadcasting Commission started dividing its broadcasts into French andEnglish halves. Marc Raboy (1990) points out that “as early as 1934, Cana-dian Public Broadcasting served two audiences, two markets, and two pub-lics with one policy, one mandate and one institution” (p. 52). The CanadianRadio Broadcasting Commission was replaced by the Canadian Broadcast-ing Corporation in 1936, but the separation of services continued through theFrench-language Radio-Canada and the English language Canadian Broad-casting Corporation. In response to the openly partisan position of Radio-Canada during the conscription crisis, Québec political parties gave supportto Premier Maurice Duplessis’s 1945 proposal to create Radio-Québec. Thebill easily passed the Québec Legislative Assembly, but it was never put intoeffect because of Ottawa’s declaration that it would refuse to grant provinciallicenses. In 1948, Duplessis (as quoted in Proulx, 1986) considered Ottawa’srefusal to be a violation of Québec’s constitutional prerogatives: “Québecholds the centralisation of broadcasting into the hands of the federal bureau-cracy to be contrary to the fundamental principles ratified by the Canadianconstitution and the fathers of the confederation” (p. 116).

The postwar political climate in Canada witnessed increasing federalpowers. The recommendations of the Royal Commission on National Devel-opment in Arts, Letters and Science (Massey Commission, from 1949 to1951) highlight the role of media in building national unity. The MasseyCommission was followed by the Royal Commission on Broadcasting(Fowler Commission, from 1955 to 1957), which made more specific recom-mendations for a national media policy. But as Austin Weir (1965) points outin his study on national broadcasting in Canada at the time, “There were, ineffect, two countries” (p. 294). In the meantime, the Quiet Revolution wasunder way in Québec and it was consuming the political interests of thatprovince. Formally a federal crown corporation, Radio-Canada was a leadingforce in disseminating the modernist reform project of Québec’s Quiet Revo-lution. Despite the internal changes, Québec’s position vis-à-vis the rest ofthe country remained constant as it regarded itself different from the otherprovinces of English Canada. In this context, Premier Jean Lesage opposedthe process of harmonization of provincial legislation. In 1965, Lesage (asquoted in Proulx, 1976) explained Québec’s position as follows:


We understand that the federal government is seeking uniformity in adminis-tration together with uniformity in the services provided to the populationacross the country. I would respond that such a concern with administrativeuniformity does not justify centralisation and unilateral decisions. . . . Québecdoes not adhere to this type of uniformity because we believe that our nationalcommunity has the right to blossom as it sees fit. . . . It is reasonable to expectthat the administrative decisions of the government of Québec will not be nec-essarily identical to those of other provincial governments. (pp. 59-60)

In 1966, Daniel Johnson’s Union Nationale government came to power,but the reforms started by Jean Lesage’s Liberals continued. In 1967,Johnson (as quoted in Proulx, 1976) also continued Lesage’s position onseeking more powers for Québec concerning media policy:

Another area to which the government of Québec attaches great importanceconcerns the instruments of education and culture, particularly radio and tele-vision. . . . Québec can no longer tolerate being absent from an area where itsvital interests are clearly evident, especially if one takes into account the futureof mass communication in audio-visual media. (p. 60)

In 1968, the Québec government decided to put into action Duplessis’s origi-nal 1945 bill on Radio-Québec. The following year, Jean-Jacques Bertrand’sgovernment established a Ministry of Communications and a Québec Broad-casting Bureau. Robert Bourassa’s Liberal government that came to power in1970 continued the position of successive Québec governments and made“cultural sovereignty” a key demand in its dealings with Ottawa. In his so-called green book on the development of cultural policy, Minister of CulturalAffairs Jean-Paul L’Allier spelled out Québec’s claims for autonomy in allaspects of cultural policy—including the media (“Jean-Paul L’Allier RevealsHis Policy,” 1976). The Parti Québécois government that came to power in1976 continued this position. In April 1977, Minister of CommunicationsLouis O’Neill wrote an open letter to his federal counterpart, Jeanne Sauvé,asking the federal government to exit the policy area of broadcasting(“O’Neill Fears Ottawa’s Intervention,” 1977).

In the meantime, the Canadian Radio-Television and Telecommuni-cations Commission had set up a Committee of Inquiry into the NationalBroadcasting Service (Boyle Committee). The final report of the BoyleCommittee, published in July 1977, points out the bifurcation of media inCanada, calling it “cultural apartheid”: “There is a mutual lack of interestbetween the networks of each linguistic group accentuated by the markeddifferences between the English-language and French-language journalistsin terms of their points of view, attitudes and work methods” (as excerpted in


“Radio, Television and National Unity,” 1977, p. 7). In an editorial in LeDevoir titled “The Two Solitudes of CBC-Radio Canada,” Claude Ryan(1977)—who would later become the leader of the Québec Liberal Party—commented on the findings of the report: “The dualism of the networks thatwas present from the start has survived all the changes. This cannot beexplained as a random outcome or persistence, but as a concern for beingfaithful to reality” (p. 4).

The failed 1980 referendum and the repatriation of the Constitution with-out the approval of Québec’s National Assembly continued to poison Qué-bec City–Ottawa relations in the early 1980s. The persistence of the prob-lems led the new Conservative government under Brian Mulroney to seekvarious mechanisms to officially recognize Québec’s distinctiveness. Thefirst sign was an agreement between Ottawa Communications MinisterMarcel Masse and his Québec counterpart Jean-François Bertrand concern-ing the future of francophone television. Accordingly, both sides agreed to“recognise the distinctiveness of the French-language television network inCanada, which would mean the existence of two different television broad-casting policies in the country” (from the report L’avenir de la televisionfrancophone au Canada [The Future of Francophone Television in Canada],as reproduced in “Ottawa and Québec Listen,” 1985, p. C-1).

In 1985, the Task Force on Broadcasting Policy, cochaired by GeraldCaplan and Florian Sauvageau, began to study the question of media policy.Their final report was released the following year: “French radio and televi-sion broadcasting in Canada, in terms of productions, stations and audience,is almost entirely from Québec. Canadian content here essentially meansQuébécois content” (Caplan & Sauvageau, 1986a, p. 225). Consequently,the report recommends that “the two sectors, serving distinct societies,should be allowed to take different approaches to meeting the objectivesassigned to public broadcasting” (Caplan & Sauvageau, 1986b, p. 161). Thiswas a belated recognition of what was already taking place in practice. As the1986 report of the Royal Commission on the Economic Union and Develop-ment Prospects for Canada (Macdonald Commission) concludes, “Quebecdoes have a de facto special status in Canada. The question is how much dejure special status Quebec should have” (Beckton & Mackay, 1986, p. 4).3

At present, Canadian media remains divided into two linguistic halves.Public broadcasting is under exclusive federal jurisdiction, but a steady pro-cess of congruence has led to the bifurcation of Canadian broadcasting. Thisis not only with respect to public administration of broadcasting. Accordingto Mary Jane Miller (1995, p. 191), Canadian television is broadly divided


3. For discussions of Québec’s de facto special status, see also Gagnon and Garcea (1988)and Brossard (1974).

into two systems of national symbols. The issue of French-English divisionsin Canadian broadcasting is well documented by other observers as well(Fletcher & Fletcher, 1989; Laramée, 1993; Nielsen, 1994; Rose, 1998;D. Smith, 1989). The same pattern characterizes the print media. RowlandLorimer (1995, p. 202) notes that the country is divided into two distinct mar-kets in publishing with very little flow of material in between (see alsoDemers, 1993). Arthur Siegel (1983, pp. 209-210) sees major differencesbetween the two linguistic halves of the country in terms of newspaper styles,coverage, and interest. The discrepancy between the uncodified workingsand the unworkable codes in Canadian politics is, thus, particularly visible inthis policy area. Raboy (1997) sums up the picture: “Basically, inevitably, theinstitutions and practices of Canadian communications have reflected theinconsistencies of Canada rather than the national unity designs of theirarchitects” (p. 318).

These patterns indicate a clear difference between Québec and the nineprovinces of English Canada. Although Québec wants, exercises, and some-times gets more self-rule of media policy, the rest of the country is contentwith entrusting the federal government with this competence. Official bilin-gualism prescribes a coast-to-coast policy based on individual rights; but inpractice, what we have here is a picture of Québec versus English Canada.Thus there is a clear asymmetry: One province—which is just like the othersaccording to the constitution—is the counterpart of the federal governmentin this policy area.

Education

Although French-English dualism characterizes both print and broadcast-ing media, education remains a provincial jurisdiction. However, the dis-tance between the letter of the law and actual practice is visible in this policyarea as well. The nine provinces of English Canada frequently collaborate tostandardize their policies, often with federal involvement; Québec, on theother hand, is very sensitive about federal encroachment and remains anoutlier.

Such duality can be traced back to the Québec Act of 1774, which recog-nizes the role of the Catholic Church in education. The United Province ofCanada continued such de facto dualism, which acquired limited de jurerecognition in 1867 as the two halves of the province of Canada regainedself-government.4 In the years following the end of World War II, the country


4. Whether the British North America Act of 1867 was based on a compact between Englishand French Canada, or whether it was a compact between four provinces, has historically divided

witnessed a massive increase in the scope and reach of public policies. Edu-cation was among the first policy areas that were subject to this expansion.Based on the recommendations of the Massey Report in 1951, the federalgovernment introduced a program of direct subsidies to postsecondary edu-cation. Québec, however, opted out from most of Ottawa’s conditional grantprograms. The Union Nationale government of Maurice Duplessis was par-ticularly opposed to letting the federal government into the field of educationthrough direct federal grants to universities. In 1954, Québec also withdrewfrom the Dominion-Provincial Student Aid Program. In addition to these optouts in educational policy, Québec decided to tackle the expansion of Ottawain a matter of principle. The response was the creation of the Québec RoyalCommission of Inquiry Into Constitutional Problems (Tremblay Commis-sion). In 1955, the commission’s dossier on education was published: “Sinceconfederation, the sentiments of Quebecers, and French-Canadians in gen-eral, have not changed: exclusive provincial jurisdiction over education isone of the most important federal compromises. It should be jealouslyguarded and it should remain as comprehensive as possible” (Tremblay,1955, p. 381). In 1958, Duplessis’s successor, Paul Sauvé, reached a dealwith Prime Minister John Diefenbaker in which Québec remained outsideOttawa’s conditional grant program in education but received compensation.This was the beginning of the pattern of Québec opt outs with financial com-pensation from federal-provincial shared-cost programs.

In 1960, Jean Lesage’s Liberals came to power and the modernizationprocess of the Quiet Revolution began to transform the internal politicalstructure of Québec. The opposition to Ottawa’s role in educational policy,however, continued without interruption. Jean Lesage appointed aneonationalist, former rector of Laval University, Monsignor Alphonse-Marie Parent, to head the provincial Royal Commission on EducationalReform. Based on the recommendations of the Parent Commission, the Qué-bec state reentered the field of education, which had been within the preroga-tive of the Church since 1875. The new Québec Department of Educationwas established in 1964 with Paul Gérin-Lajoie as the education minister.Québec Liberals continued the policies of opting out that Duplessis hadestablished.5 Michael Behiels (1985) explains the reasons behind Québec’sposition as follows:


the students of Canadian federalism. As an explanation for the differences in interpretation, someobservers draw attention to the ambiguity in certain parts of the British North America Act(Foley, 1989; Gagnon & Erk, 2001; Thomas, 1997).

5. David M. Cameron (1991, pp. 85-86, 117, 122) documents the various opt outs by Québec.

Underlying the neo-nationalist rejection of federal grants to universities andsupport for cultural and linguistic development in general was the firm convic-tion that a national minority could not relegate, even in the smallest measure,responsibility for its future to federal institutions controlled by another major-ity culture. (p. 208)

Conditional federal grants and shared-cost programs that were welcomedby the nine provinces of English Canada were opposed by all shades of politi-cal opinion in Québec. As the leader of Union Nationale, Daniel Johnson (asquoted in Scott & Oliver, 1964), observed in 1963,

What is possible, however, is to allow Quebec to retain, in virtue of its responsi-bility for a given cultural group, those rights, powers, and constitutional free-doms of which the other provinces no longer feel the need, since they prefer toentrust to the central government the responsibility for the culture they share.(p. 33)

This idea found support in English-speaking Canada as well. As the NewDemocrat Party leader at the time, Tommy Douglas (as quoted in Saywell,1969), remarked in 1968,

Thus, it may mean that in any area such as education and housing, where Que-bec feels that a strong federal power may erode provincial rights, it may be nec-essary to have two programs—one for English-speaking Canada and one forQuebec. (pp. 60-61)

During the first half of the 1970s, the Québec Liberal Party was in powerunder the leadership of Robert Bourassa. Bourassa continued Québec’s tradi-tional policy of jealously protecting exclusive provincial jurisdiction of edu-cation. He reaffirmed the policy of seeking cultural sovereignty for Québec.However, those who were in favor of a Canada-wide approach to educationfound an unlikely ally from outside. The Organization for Economic Cooper-ation and Development (1976), as part of its series on the education systemsof its members, published its report on Canada. The report calls for a nationaleducation policy and a federal-provincial bureau of education (Organizationfor Economic Cooperation and Development, 1976, pp. 96-97, 102-103). Itis not surprising that Québec’s minister of education at the time, Jean-MarieBeauchemin (1976), voiced his objections to the recommendations of thereport:

Why did [the Organization for Economic Cooperation and Developmentexaminers] not base their report on the undeniable reality of two national iden-


tities? Did they not feel the pulse of the political will of Québec, or not see thenecessity of developing two majority cultures? (p. 26)

The year 1976 was also when Parti Québécois got elected to power inQuébec. The new premier, René Lévesque, was in favor of a large-scale re-arrangement of the federal system. Lévesque advocated a system of sover-eignty-association between Québec and the rest of Canada in a binationalframework. The federal government responded with the creation of a TaskForce on Canadian Unity. Named after its cochairmen, John Robarts andJean-Luc Pepin, the Pepin-Robarts Commission drafted a report that advo-cates the formal recognition of dualism in the Canadian federation. However,Trudeau’s federal government resisted such a redrawing of the federal mapand in fact, decided to take the offensive—especially in the field of education.The comments made by federal Secretary of State John Roberts in 1978 (asquoted in Hargraves, 1981) display the increasing tensions between Québecand the rest of the country:

The constitution does not exclude the setting of national goals in education. Itdoes not absolve the federal government of responsibility for educational pro-cesses inevitably carried out by instruments within federal jurisdiction. Aboveall, the constitution does not rule out the federal-provincial cooperation in theevolution of educational policy for Canada. (p. 24)

In response to the federal offensive, Lévesque decided to call a referen-dum on sovereignty and economic association. The vote was to give the gov-ernment the mandate to negotiate a sovereignty-association with the federalgovernment. The Québec Liberal Party did not go as far as seeking a large-scale transformation of the system into a binational confederation butinstead, supported the move toward increased self-rule. The ConstitutionalCommittee of the Québec Liberal Party (1980) declared that “in these twoareas [i.e., education and culture], we propose to maintain Québec’s histori-cal position—an affirmation of the primary role of the provinces and an atti-tude of opposition to federal initiatives” (p. 77).

Ottawa’s position, however, was quite different. In 1981, at a nationalsymposium titled Education in Canada: Federal-Provincial Relations in Ed-ucation, federal Secretary of State and Minister of Communications FrancisFox (1981) made the following point: “Education in Canada is a subject thatmust be a basic concern to all Canadians. For that reason the federal govern-ment must be both present and involved” (p. 54). Provinces of English Can-ada did not see this as an unacceptable encroachment into an area of exclu-sive provincial jurisdiction and were open to Ottawa’s participation. At the


same symposium, Minister of Education of British Columbia Brian Smith(1981) declared that “the provinces have a duty to cooperate and worktowards some common educational goals and the federal government has arole in post-secondary education to articulate those goals and provide vitalfunding” (p. 58).

In the late 1980s, the new Progressive-Conservative government inOttawa, under the leadership of Brian Mulroney, tried to institutionalizeQuébec’s distinctiveness through a round of negotiations that culminated inthe Meech Lake Accord of 1987. However, Meech Lake faced strong opposi-tion from English Canada; its diluted successor, the Charlottetown Accord of1992, faced opposition from both Québec and the rest of the country. Onceagain, it was the workings of the system that filled the void between anunworkable constitution and the underlying ethnolinguistic duality. Educa-tion continued to be a policy area where the differences between Québec andthe rest of the country were most pronounced.

In the 1990s, the divisive question of federal role in workforce trainingtook on the long-standing pattern of asymmetry between Québec and the restof the country. The Québec government saw workforce training as a part ofeducation and, hence, as provincial jurisdiction. The federal government,however, was picking up the tab for workforce training programs in otherprovinces. This is yet another reflection of the existence of two linguisticpublic spaces in Canada. Public opinion in English Canada tends to favor amore harmonized approach to education policy. The excerpt below from aGlobe and Mail editorial titled “For a Federal Role in Education” (1993) is agood example of the prevailing approach to educational federalism outsideQuébec:

Yet there is much Ottawa could do without overstepping its jurisdiction andwithout asking the provinces permission. Can do and should do. . . . Why have afederation, anyway? Because while some things are best left to local govern-ments, some things can only be done at a national level. (p. A-16)

This was the perspective endorsed by Maclean’s the same year in its specialissue on Canadian education: “Clearly, what is lacking is a national set ofgoals and standards that all provinces endorse—and strive to achieve” (“Spe-cial Report,” 1993, p. 4). This seems to follow Kymlicka’s (2001) observa-tion that “while most Québécois want an even more decentralized division ofpowers, most English-speaking Canadians favour retaining a strong centralgovernment” (p. 103).

Recently the tensions have reemerged between Québec City and Ottawawith regard to the federal government’s Millennium Scholarship initiative.


Although all nine provinces of English Canada welcomed these new funds toeducation, Québec saw this as a federal intrusion into its prerogatives.Another recent example is the Social Union Framework Agreement betweenthe federal government and the nine provinces of English Canada that wassigned on February 4, 1999. Among other things, this agreement aims toincrease mobility within Canadian postsecondary education by eliminatingresidency-based policies of the provinces. Alain Noël (2000, p. 17) notes thatmany provinces share the pan-Canadian vision of the federal government interms of a preference for national solutions. This reduced their bargainingleverage in negotiations with the federal government. In addition, “English-Canadian public opinion on these questions is either indifferent or favoursthe federal government” (Noël, 2000, pp. 17-18). As a result, the country hascome to function in two halves: One side has reached a fair degree of stan-dardization in education policy, whereas the other jealously protects itsprerogatives.

Conclusion

The written constitution of the Canadian federation is of limited use inexplaining how the federal system works. A fuller apprehension of the politi-cal patterns at play requires the use of a society-based approach. In particular,it is in the policy areas of education and mass media where one finds thegreatest degree of disparity between the letter of the law and the true work-ings of the system. These two areas of public policy are particularly impor-tant outlets for identity politics and, hence, they are the immediate reflectionsof the underlying ethnolinguistic duality of the Canadian social structure.

Starting with the BNA Act of 1867, Québec has demanded, in one way oranother, the codification of its distinct status into the constitution. Changes inQuébec led to changes in who was doing the demanding. What started as aconservative Christian Democrat demand symbolized by the Tremblay(1955) report evolved into a progressive Social Democrat position of theParti Québécois and the soft nationalism of the Québec Liberal Party. Whatremains constant, however, is a deep-seated conviction that the Québecdemos is separate from the Canadian one and that the constitution shouldacknowledge this. But neither constitutional reform packages nor sover-eignty referenda have managed to bring this about. Although there has beenno codification of the distinctiveness into law, the system has come to func-tion in an asymmetrical way in its day-to-day running. The cooperationbetween the nine provinces of English Canada is much closer than what areading of the constitution would suggest, whereas Québec prefers to do


things on its own. Thus it appears that the uncodified workings of the federalsystem reflect the underlying ethnolinguistic social structure more closelythan the letter of the law. Because the linguistic communities determine thepublic spaces in which political deliberations take place, public policies tendto be the first reflection of the dualism of the Canadian social structure. Thefield of public policy, in this respect, indicates how the federal system reallyworks.

The different approaches to federal involvement and nationwide publicpolicies between Québec and the other provinces are noted by Simeon(1972) in his influential study of federal-provincial relations in the 1960s.Simeon notes how in Québec, “policies will be examined from the point ofview of Québec first; Québec, not Canada is the reference point” (p. 175); forthe rest of Canadians, the reference point is the nation as a whole and theretends to be strong public support for national policies (pp. 232-233).Kymlicka (2001) believes that these differences might suggest a bigger phe-nomenon than just the choice of the public policy provider: “One way todescribe the problem is to say that there is a disjunction between the legalform of multination federalism and its underlying political foundations”(p. 113). And in the absence of codification, duality tends to reveal itselfthrough the workings of the system.

In addition to the theoretical significance of this conclusion, there aresome indirect policy-relevant messages that arise. The preceding inquirylargely stays clear of prescriptive concerns in its pursuit of displaying thedifferences between the uncodified workings and the unworkable codes ofCanadian federalism, but the broad patterns this article identifies have certainpolicy implications. In particular, the findings point to the limits on the effec-tiveness of institutional designs incongruent with social structures. By ex-tension, the findings highlight the role underlying social structures play infederal systems. In this context, Banting’s (1987) caveat is worth remember-ing: “Inflating the importance of institutions . . . makes any constitutionalchanges that are enacted less likely to succeed. Reforms premised on faultyassumptions are bound to disappoint their champions. Political institu-tions are much too important to have their policy significance exaggerated”(p. 130).

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Jan Erk is assistant professor of comparative politics at University of Leiden, the Netherlands.He has previously held a Fonds québécois de la recherche sur la société et la culture (FQRSC)postdoctoral research fellowship at University of Toronto and the Hoover research fellowship atUniversité catholique de Louvain. His research interests include comparative federalism andnationalism. His most recent articles are in West European Politics (2005) and Nations andNationalism (2005).


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