On February 10, 1763, France ceded most of New France to Great Britain. The 1763 Treaty of Paris confirmed the cession of Canada, including all its dependencies, Acadia (Nova Scotia) and Cape Breton Island to Great Britain. A year before, France had secretly ceded Louisiana to Spain to avoid losing it to the British. (See the Treaty of Fontainebleau).
At the time of the signing, the French colony of Canada was already under the control of the British army since the capitulation of the government of New France in 1760. (See the Articles of Capitulation of Montreal.)
The policy of Great Britain regarding its newly acquired colonies of America was revealed in a Royal Proclamation, issued on October 7, 1763. The proclamation renamed Canada "The Province of Quebec", redefined its borders and established a British-appointed colonial government. Although not a constitutional text, the proclamation expressed the will of the British sovereign to make statutes for its new possessions. The proclamation was thus considered as the de facto constitution of Quebec until 1774. The new governor of the colony was given "the power and direction to summon and call a general assembly of the people's representatives" when the "state and circumstances of the said Colonies will admit thereof".
The governor was also given the mandate to "make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof" with the consent of the British-appointed councils and representatives of the people. In the meantime, all British subjects in the colony were guaranteed of the protection of the law of England, and the governor was given the power to erect courts of judicature and public justice to hear all causes, civil or public.
The Royal Proclamation contained elements that conflicted with the Articles of Capitulation of Montreal, which granted Canadians the privilege to maintain their civil laws and practise their religion. The application of British laws such as the penal Laws caused numerous administrative problems and legal irregularities. The requirements of the Test Act also effectively excluded Catholics from administrative positions in the British Empire.
When James Murray was commissioned as captain general and governor in chief of the Province of Quebec, a four-year military rule ended, and the civil administration of the colony began. Judging the circumstances to be inappropriate to the establishment of British institutions in the colony, Murray was of the opinion that it would be more practical to keep the current civil institutions. He believed that, over time, the Canadians would recognize the superiority of British civilization and willingly adopt its language, its religion, and its customs. He officially recommended to retain French civil law and to dispense the Canadians from taking the Oath of Supremacy. Nevertheless, Murray followed his instructions and British institutions began to be established. On September 17, 1764, the Courts of the King's Bench and Common Pleas were constituted.
Tensions quickly developed between the British merchants or old subjects, newly established in the colony, and Governor Murray. They were very dissatisfied with the state of the country and demanded that British institutions be created immediately. They demanded that common law be enforced to protect their business interests and that a house of assembly be created for English-speaking Protestants alone. Murray didn't think very highly of these tradesmen. In a letter to the British Lords of Trade, he referred to them as "licentious fanatics" who would not be satisfied but by "the expulsion of the Canadians".
The conciliatory approach of Murray in dealing with the demands of the Canadians was not well received by the merchants. In May 1764, they petitioned the king for Murray's removal, accusing him of betraying the interests of Great Britain by his defence of the Canadian people's interests. The merchants succeeded in having him recalled to London. He was vindicated, but did not return to the Province of Quebec. In 1768, he was replaced by Sir Guy Carleton, who would contribute to the drafting of the 1774 Quebec Act.
Murray called in the representatives of the people in 1765; however, his attempt to constitute a representative assembly failed, as, according to historian Francois-Xavier Garneau, the Canadians were unwilling to renounce their Catholic faith and take the test oath required to hold office.
In December 1773 Canadian landlords submitted a petition and a memorandum in which they asked:
They expressed their opinion that the time was not right for a house of assembly because the colony could not afford it and suggested that a larger council, composed of both new and old subjects, would be a better choice.
In May 1774 the British merchants trading in Quebec responded by submitting their case to the king.
As early as 1765, British merchants established in Quebec City address a petition to the King to ask for "the establishment of a house of representatives in this province as in all the other provinces" of the continent. Indeed, all the colonies under British domination had parliamentary institutions, even Nova Scotia which obtained its Parliament in 1758.
The movement for reform did not receive any support from the Canadians originally.
No assembly of representatives was created, which allowed the governor to keep ruling under the advice of his counsellors.
The British merchants of Quebec were not pleased by this new act, which ignored their most important demands. They continued to campaign to abolish the current civil code and establish a house of assembly excluding Catholics and French-speakers.
The Quebec Act was also very negatively received in the British colonies to the south. (See the Intolerable Acts.) This act was in force in the Province of Quebec when the American Revolutionary War broke out in April 1775.
The second letter was written on May 25, 1775. Shorter, it urged the inhabitants of Canada not to side against the revolutionary forces. (The congress was aware that the British colonial government had already asked the Canadians to resist the call of the revolutionaries.)
On May 22, 1775, Bishop of Quebec Jean-Olivier Briand sent out a mandement asking the Canadians to close their ears to the call of the "rebels" and defend their country and their king against the invasion.
Although both the British and the revolutionaries succeeded at recruiting Canadian men for militia, the majority of the people chose not to get involved in the conflict.
In 1778, Frederick Haldimand became governor in replacement of Guy Carleton. (He served up until 1786, when Guy Carleton (now Lord Dorchester) returned as governor.)
In July 1784, Pierre du Calvet, a rich French merchant established in Montreal, published a pamphlet entitled Appel à la justice de l'État (Call to the Justice of the State) in London. Printed in French, the document is the first plea in favour of a constitutional reform in Canada. Du Calvet, imprisoned at the same time and for the same reasons as Fleury Mesplet and Valentine Jautard, both suspected of symphatizing and collaborating with the American revolutionaries during the war, undertook to have the injustice committed towards him be publicly known by publishing The Case of Peter du Calvet and, a few months later, his Appel à la justice de l'État.
On November 24, 1784, two petition for a house of assembly, one signed by 1436 "New Subjects" (Canadians) and another signed by 855 "Old Subjects" (British), were sent to the king of Great Britain. The first petition contained 14 demands. "A Plan for a House of Assembly" was also sketched in the same month of November. In December, "An Address to His Majesty in opposition to the House of Assembly and a list of Objections" were printed by the press of Fleury Mesplet in Montreal. The main objection to the house of assembly was that the colony was not, according to its signatories, in a position to be taxed.
At the time the November 24 petition was submitted to the king, numerous United Empire Loyalists were already seeking refuge in Quebec and Nova Scotia. In Quebec, the newly arrived settlers contributed to increase the number of people voicing for a rapid constitutional reform. In Nova Scotia, the immigrants demanded a separate colony.
When Guy Carleton returned as governor, he was already informed that the arrival of the Loyalists would require changes.
On October 20, 1789, Home Secretary William Wyndham Grenville wrote a private and secret letter to Governor Lord Dorchester informing him of the king's counsellors plans to modify Canada's constitution. The letter leaves little doubt as to the influence that the American War of Independence and the taking of the Bastille (which had just occurred in July) had on the decision. In the first paragraph, Grenville writes: "I am persuaded that it is a point of true Policy to make these Concessions at a time when they may be received as matter of favour, and when it is in Our own power to regulate and direct the manner of applying them, rather than to wait 'till they shall be extorted from Us by a necessity which shall neither leave Us any discretion in the form, nor any merit in the substance of what we give."
Grenville, who prepared the constitution in August 1789, was appointed to the House of Lords before having the time of submit his project to the British House of Commons. Thus, the Prime Minister William Pitt who did it in his place.
Following the presentation of the project, British merchants established in Quebec delegated Adam Lymburner to London to present their case of opposition. The British subjects represented by Lymburner objected to the creation of two provinces, suggested an increase in the number of representatives, elections every three years (instead of seven) and requested an electoral division which would have overrepresented the Old Subjects by granting more representatives to the populations of the cities.
The objections of Lymburner were fought against by, among others, deputy Charles James Fox, and in the end only the suggestions related to the frequency of elections and the number of representatives were retained.
This partition ensured that Loyalists would constitute a majority in Upper Canada and allow for the application of exclusively British laws in this province. As soon as the province was divided, a series of acts were passed to abolish the French civil code in Upper Canada. In Lower Canada, the coexistence of French civil law and English criminal law continued.
Although it solved the immediate problems related to the settlement of the Loyalists in Canada, the new constitution brought a whole new set of political problems which were rooted in the constitution. Some of these problems were common to both provinces, while others were unique to Lower Canada or Upper Canada. The problems that eventually affected both provinces were:
In the two provinces, a movement for constitutional reform took shape within the majority party, the Parti canadien of Lower Canada and the Reformers of Upper Canada. Leader of the Parti Canadien, Pierre-Stanislas Bédard was the first politician of Lower Canada to formulate a project of reform to put an end to the opposion between the elected Legislative Assembly and the Governor and his Council which answered only the Colonial Office in London. Putting forward the idea of ministerial responsibility, he proposed that the members of the Legislative Council be appointed by the Governor on the recommendation of the elected House.
Supported by Governor Dalhousie, anglophone petitioners from the Eastern Townships, Quebec City and Kingston, the bill submitted in London provided, among other things, that each of the two sections of the new united province would have a maximum of 60 representatives, which would have put the French-speaking majority of Lower Canada in a position of minority in the new Parliament.
The mobilization of the citizens of Lower Canada and Upper Canada began in late summer and petitions in opposition to the project were prepared. The subject was discussed as soon as the session at the Parliament of Lower Canada opened on January 11, 1823. Ten days later, on January 21, the Legislative Assembly adopted a resolution authorizing a Lower Canadian delegation to go to London in order to officially present the quasi-unanimous opposition of the representatives of Lower Canada to the project of union. Exceptionally, even the Legislative Council gave its support to this resolution, with a majority of one vote. Having in their possession a petition of some 60 000 signatures, the Speaker of the House of Assembly, Louis-Joseph Papineau, as well as John Neilson, Member of Parliament, went to London to present the opinion of the majority of the population which they represented.
Faced with the massive opposition of people most concerned with the bill, the British government finally gave up the union project submitted for adoption by its own Colonial Office.
Following the adoption of the Ninety-Two Resolutions, the Governor Gosford arrived in Lower Canada to replace governor Aylmer. Gosford set up royal commission of inquiry conducted by Charles E. Gray and George Gipps. The Royal Commission for the Investigation of all Grievances Affecting His Majesty's Subjects of Lower Canada reported on November 17, 1836 and the Ten resolutions of John Russel were mostly based on it.
Most of the recommendations brought forth by the elected assemblies were systematically ignored by the Executive Councils. This was particularly true in Lower Canada with an assembly consisting mostly of French-Canadian members of the Parti Patriote. This impasse created considerable tensions between the French-Canadian political class and the British government. In 1834 Louis-Joseph Papineau, a French-Canadian political leader, submitted a document entitled the Ninety-Two Resolutions to the Crown. The document requested vast democratic reforms such as the transfer of power to elected representatives. The reply came three years later in the form of the Russell Resolutions, which not only rejected the 92 Resolutions but also revoked one of the assembly's few real powers, the power to pass its own budget. This rebuff heightened tensions and escalated into armed rebellions in 1837 and 1838, known as the Lower Canada Rebellion. The uprisings were short-lived, however, as British troops quickly defeated the rebels and burned their villages in reprisal.
The rebellion was also contained by the Catholic clergy, which, by representing the only French-Canadian institution with independent authority, exercised a tremendous influence over its constituents. During and after the rebellions Catholic priests and the bishop of Montreal told their congregants that questioning established authority was a sin that would prevent them from receiving the sacraments. The Church refused to give Christian burials to supporters of the rebellion. With liberal and progressive forces suppressed in Lower Canada, the Catholic Church's influence dominated the French-speaking side of French Canadian/British relations from the 1840s until the Quiet Revolution secularized Quebec society in the 1960s.
Following the rebellions, in May 1838, the British government sent Governor General Lord Durham to Lower and Upper Canada in order to investigate the uprisings and to bring forth solutions. His recommendations were formulated in what is known as "Lord Durham's Report" and suggested the forced union of the Canadas with the expressed purpose of "making [Lower Canada] an English Province [that] should never again be placed in any hands but those of an English population." Doing so, he claimed, would speed up the assimilation of the French-Canadian population, "a people with no history, and no literature" into a homogenized English population. This would prevent what he considered to be ethnic conflicts.
Following the publication of the Report on the Affairs of British North America, the British Parliament adopted, in June 1840, the Act of Union. The new Act, which effected the legislative union of Upper Canada and Lower Canada to form a single province named the Province of Canada, implemented the principal recommendation of John George Lambton's report, but did not grant a "responsible government" to the new political entity. Entering into force as of February 1841, the 62 articles of the Act of Union brought about the following changes:
As a result, Lower Canada and Upper Canada, with its enormous debt, were united in 1840, and French was banned in the legislature for about eight years. Eight years later, an elected and responsible government was granted. By this time, the French-speaking majority of Lower Canada had become a political minority in a unified Canada. This, as Lord Durham had recommended in his report, resulted in English political control over the French-speaking part of Canada, and ensured the colony's loyalty to the British crown. On the other hand, continual legislative deadlock between English and French led to a movement to replace unitary government with a federal one. This movement culminated in Canadian Confederation.
The same year, Alexander T. Galt, Member of Parliament for Sherbrooke, agrees to become a Minister of Finance in the Macdonald-Cartier government provided that his own project of confederation is accepted.
The British North America Act 1867 was the act that established the Dominion of Canada, by the fusion of the North American British colonies of the Province of Canada, Province of New Brunswick, Province of Nova Scotia. The former subdivisions of Canada were renamed from Canada West and Canada East to the Province of Ontario and Province of Quebec, respectively. Quebec and Ontario were given equal footing with New Brunswick and Nova Scotia in the Parliament of Canada. This was done to counter the claims of manifest destiny made by the United States of America, for the defense of Britain's holdings. American claims are evinced by the invasions of the Canadas during the British-American War (1812) and the British-American War (1776).
Prior to the BNA Act of 1867, the British colonies of the Province of New Brunswick, Province of Nova Scotia, and Province of Prince Edward Island, discussed the possibility of a fusion to counter the threat of American annexation, and to reduce the costs of governance. The Province of Canada entered these negotiations at the behest of the British government, and lead to the ambivalence of the Province of Prince Edward Island, which later joined the new Dominion. The constitutional conference, ironically, was held on Prince Edward Island, in Charlottetown.
On May 12, 1870, the British Crown proclaimed the Manitoba Act, enacted by the Parliament of Canada, effectivement giving birth to the province of Manitoba. The 36 articles of the Act established the territorial limits, the subjects' right to vote, the representation in the Canadian House of Commons, the number of senators, the provincial legislature, permitted the use of English and French in the Parliament and in front of the courts and authorized the setting-up of a denominational education system.
The coexistence, on the territory of the province, of French-speaking and Catholic communities (the Métis) as well as English-speaking and Protestant communities (British and Anglo-Canadian immigrants) explains the institutional arrangement copied on that of Quebec.
Canada and the other British dominions achieved full legislative sovereignty with the passage of the Statute of Westminster 1931, but prior to the Canada Act 1982 the British North America Acts were excluded from the operation of the Statute of Westminster and could only be amended by the British Parliament.
The Quiet Revolution also forced the evolution of several political parties, and so, in 1966, a reformed Union Nationale led by Daniel Johnson, Sr., returned to power under the slogan "Equality or Independence". The new premier of Quebec stated, "As a basis for its nationhood, Quebec wants to be master of its own decision-making in what concerns the human growth of its citizens--that is to say education, social security and health in all their aspects--their economic affirmation--the power to set up economic and financial institutions they feel are required--their cultural development--not only the arts and letters, but also the French language--and the Quebec community's external development--its relations with certain countries and international bodies".
In 1968, René Lévesque's Mouvement souveraineté-association joined forces with the Rassemblement pour l'indépendance nationale and the Ralliement national to create the Parti Québécois; Quebec's provincial political party that has since espoused the province's sovereignty. That same year, Pierre Trudeau became prime minister of Canada by winning the leadership race of the federal Liberal Party. He would undertake numerous legislative measures to enhance the status of Quebec within Canada, including the passage into law in 1969 of the Official Languages Act, which expanded upon the original official language status of both French and English from the 1867 British North America Act.
After the 1980 referendum was defeated, the government of Quebec passed Resolution 176, which stated, "A lasting solution to the constitutional issue presupposes recognition of the Quebec-Canada duality."
Meeting in Ottawa on June 9, 1980, the newly re-appointed Prime Minister Pierre Elliott Trudeau and the provincial premiers set an agenda and gave their ministers responsibility for constitutional issues and a mandate to proceed with exploratory discussions to create a new Canadian constitution. However, given the separatist government of Quebec's position that there be two nations established first in accordance with Resolution 176, approval by Quebec of any changes to the BNA Act was impossible. This assertion of national duality was immediately followed with Resolution 177 that stated, "Quebec will never agree, under the existing system, to the patriation of the Constitution and to an amending formula as long as the whole issue of the distribution of powers has not been settled and Quebec has not been guaranteed all the powers it needs for its development." As such, Quebec's government refused to approve the new Canadian constitution a year later. This failure to approve was a highly symbolic act, but one without direct legal consequence as no one questions the authority of the Canadian Constitution within Quebec.
After losing the vote to secede from Canada, the government of Quebec made specific demands as minimum requirements for the Province of Quebec. These demands included control by the government of Quebec over:
The province of Quebec already had theoretically full control over education, health, mineral resources, supplemental taxation, social services, seniors' retirement pension funds, inter-provincial trade, and other areas affecting the daily lives of its citizens. Many Canadians viewed the additional demands as too greatly reducing the power of the federal government, assigning it the role of tax collector and manager of the national border with the United States. Others viewed these changes as desirable, concentrating power in the hands of Québécois politicians, who were more in tune with Québécois desires and interests.
Though the Parti Québécois government said that the federal government of Canada would be responsible for international relations, Quebec proceeded to open its own representative offices in foreign countries around the world. These quasi-embassies were officially named "Quebec Houses". Today, the international affairs minister is responsible for the less-expensive Quebec delegation system.
Subsequently, an agreement between the federal government and all provincial governments, except that of Quebec, agreed to Canada's assumption of full responsibility for its own constitution in 1982 (formerly the responsibility of the Parliament of the United Kingdom). The agreement was enacted as the Canada Act by the British Parliament, and was proclaimed into law by Queen Elizabeth II on April 17, 1982. In Canada, this was called the patriation of the Constitution.
This action (including the creation of a new Canadian Charter of Rights and Freedoms) came from an initiative by Prime Minister Pierre Elliott Trudeau to create a multicultural and bilingual society in all of Canada. Some Canadians saw Trudeau's actions as an attempt to "shove French down their throats" (a common phrase at the time). Many Québécois viewed his compromise as a sell-out and useless: Quebec already had a charter enacted in 1975 and was not interested in imposing French on other provinces; rather, it wished to safeguard it inside Quebec. Many Canadians recognize that the province of Quebec is distinct and unique but they do not conclude from this that Quebec merits a position of greater autonomy than the other provinces, which they feel would be the result of granting special powers that are unavailable to the other provinces.
The government of Quebec, in line with its policy of the duality of nations, objected to the new Canadian constitutional arrangement of 1982 (the patriation), because its formula for future constitutional amendments failed to give Quebec veto power over all constitutional changes.
Some believe that the leaders of Quebec used their refusal to agree to the 1982 constitutional amendment as a bargaining tool to gain leverage in future negotiations, because the federal Canadian government desired (though it is not legally necessary) to include all the provinces willingly into the amended constitution. The National Assembly of Quebec rejected the repatriation unanimously. In spite of Quebec's lack of assent, the constitution still applies within Quebec and to all Quebec residents. Many in Quebec felt that the other provinces' adoption of the amendment without Quebec's assent was a betrayal of the central tenets of federalism. They referred to the decision as the "Night of the Long Knives". On the other hand, many federalists believe that Lévesque's goal at the constitutional conference was to sabotage it and prevent any agreement from being reached, so that he could hold it up as another failure of federalism. In this school of thought, patriation without Quebec's consent was the only option.
In 1987, Prime Minister Brian Mulroney attempted to address these concerns and bring the province into an amended constitution. Quebec's provincial government, then controlled by a party that advocated remaining in Canada on certain conditions (the Parti libéral du Québec), endorsed the accord (called the Meech Lake Accord). Premier Robert Bourassa of Quebec referred to it as the "first step" towards gaining new powers from the federal government. The accord failed, however, as the legislature in Manitoba deadlocked after Elijah Harper refused consent to speed up the process enough to pass the Accord, and Clyde Wells refused to grant a vote on the Accord in the Newfoundland House of Assembly.
In 1990, after the Meech Lake Accord had failed, several Quebec representatives of the ruling Progressive Conservative Party and some members of the Liberal Party of Canada formed the Bloc Québécois, a federal political party intent on defending Quebecers' interests while pursuing independence.
In the 1993 federal elections the Bloc Québécois became the official opposition. The following year, the provincial Parti Québécois, also separatist, was elected in Quebec. The two parties' popularity led to a second referendum on independence, the 1995 Quebec referendum.
In response to concern expressed by immigrants and English-speaking Canadians regarding the wording of the question and the possibility of another referendum, Prime Minister Chrétien referred the matter to the Supreme Court of Canada in December 1999. The Court ruled that Quebec, with less than 23 percent of Canada's population, could not unilaterally secede and only accede to sovereignty if the referendum has a clear majority in favour of a clearly worded question.
Following the Supreme Court's decision, the federal government introduced legislation known as the Clarity Act which set forth the guidelines for any future referendum undertaken by the government of any province on the subject of separation. Ironically, the definition of "clearly worded" and "clear majority" were never given in the bill. Instead, it stated that the federal government would determine "whether the question is clear" and whether a "clear majority" (with a requisite supermajority for success being inferred) is attained. Sovereigntists argue that this bill grants veto power to the federal government over referendums on sovereignty.
Consequentially, with a majority vote supported by all members of the House of Commons, except for members of the Bloc Québécois, both houses of the Parliament approved the legislation.