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The 1967 Commission on Bilingualism and Biculturalism described Canada as being constituted of “two great distinct cultures” — English and French — with a “distinct society” residing in Quebec and an “English-speaking society” in the Rest of Canada (ROC). The phrase entered constitutional negotiations as early as 1970, but came to prominence when the recognition of Quebec as a distinct society was included as one of five conditions for Quebec’s participation in constitutional talks in 1985. The 1987 Meech Lake Accord proposed a distinct society clause be included in the body the constitution while the 1992 Charlottetown Accord proposed a similar clause in the constitution’s preamble. Both versions would have operated as interpretive clauses. Fears were expressed that the clause would confer special status on Quebec and undermine the Canadian Charter’s equality rights.

As to the first concern, both proposals expressly provided that no additional powers were to be accorded to Quebec under the division of powers by virtue of the clause. Instead, Courts would have been expected to use the distinct society clause as an aid to interpretation in constitutional disputes between the federal and provincial governments. The clause may have helped to tip the balance in favour of provincial jurisdiction, not for the province of Quebec exclusively but for all of the provinces equally. The concern that a distinct society clause would undermine rights guaranteed under the Charter was based on the fear that Quebec wished to limit Charter rights and freedoms without having to resort to the notwithstanding clause. It was believed that a distinct society clause would have made Courts hesitant to find language laws, and other laws designed to promote Quebec’s distinctive language and culture, inconsistent with Charter freedoms. It should be understood, however, that the Supreme Court of Canada took into account Quebec’s distinctiveness, without a distinct society clause, when it ruled in 1989 that Quebec’s commercial sign law was contrary to the Quebec and Canadian Charter guarantees of freedom of expression.