The Constitutional File and the Unity File

The Canadian Constitutional Debate:
From the Death of
the Meech Lake Accord of 1987
to the 1992 Referendum

James Ross Hurley

Note: The views expressed in this paper are those of the author and do not necessarily represent those of the Government of Canada.

Introduction

Constitutional Reform : 1968 to 1987

The Meech Lake Accord : 1987 to 1990

Constitutional Reform : 1990 to 1992

The Charlottetown Accord, August 1992

Aftermath

Introduction

Meech died at the stroke of midnight on June 23, 1990.

The causes for the failure of the Constitution Amendment, 1987, known popularly as the Meech Lake Accord, are many and complex.

At the technical level, the demise of Meech may be attributed to the failure to achieve unanimous ratification by Parliament and the legislative assemblies of the provinces within the three-year time limit prescribed by the Constitution.

The clock had begun to tick with the adoption of the first constitutional resolution authorizing proclamation of the Constitution Amendment, 1987 by the National Assembly of Quebec on June 23, 1987.

In the end, Manitoba was unable to adopt the resolution on time because of procedural difficulties in the legislative assembly. In Newfoundland, it was decided not to hold a vote on the constitutional resolution.

These technical problems do not tell the full story, however. It became clear in the latter stages of the ratification process that there was growing public antipathy towards the Accord, which focused on the process adopted for negotiating Meech Lake and the substance contained, or not contained, in it.

It is only in the light of approaches to constitutional renewal adopted during the preceding two decades that one can assess the causes of failure.

Approaches to Constitutional Reform, 1968-87

In February 1968, the federal and provincial governments began the first-ever comprehensive review of the Constitution. The issues raised were far-ranging and dealt with rights and freedoms, including language rights, as well as with national institutions, the distribution of powers, regional disparities and patriation with an amending formula. Negotiations were conducted privately among the governments, although First Ministers did engage in a number of televised presentations or debates. The Victoria Charter, a modest first step toward constitutional reform, was produced in 1971, but the governments of Quebec and Saskatchewan did not endorse it. In the absence of unanimous federal and provincial approval, no action was taken on the charter.

First Ministers agreed privately in April 1975 to seek patriation of the Constitution with an amending formula and guarantees for the French language and culture, without, however, seeking substantive reform of the Constitution before patriation. Bilateral discussions were held between federal officials and the premier of each of the provinces (or, in some cases, a Minister). Some proposals for substantive reform were suggested, but the process was abandoned early in 1976.

On March 31, 1976, Prime Minister Pierre Trudeau wrote to the premiers to suggest three different possibilities for unilateral action by Parliament to bring about patriation. One of the suggestions included some first steps toward substantive reform. Early in 1977, this approach was abandoned. The federal government later sought to amend those parts of the Constitution which it thought were amendable through legislation by Parliament when it tabled Bill C-60 in June 1978. The scope of the proposed amendments was broad but restricted in principle to federal jurisdiction. This initiative was also abandoned in due course.

A second attempt at comprehensive reform was launched by First Ministers in October 1978. Negotiations were conducted in private by the Continuing Committee of Ministers on the Constitution, supported by the Continuing Committee of Officials on the Constitution representing the federal and provincial governments. Again, the agenda was broad, ranging from rights and freedoms to institutions and powers. However, the First Ministers failed to reach unanimous consent on any proposed amendments and the issue of constitutional reform was still unresolved on the eve of the Quebec referendum.

The Quebec Referendum, May 1980

Patriation, 1980-82

During the summer of 1980, intensive negotiations - in the classic Canadian tradition of executive federalism behind closed doors - were held by the federal and provincial governments on a 12-item agenda. The agenda included:

- a constitutional preamble or statement of principles (including the issue of Quebec's distinct society);

- patriation with an amending formula;

- a charter of rights and freedoms;

- institutional reform (the Senate and Supreme Court);

- increased provincial authority over natural resources, offshore resources, fisheries, communications and family law; and

- increased federal authority over the economy.

The leaders of Canada's Aboriginal peoples were encouraged to make representations on these issues.

When the First Ministers met in September 1980, they failed to achieve unanimous consent - the litmus test for agreement at that time - on any of the items on the agenda. In October, Prime Minister Trudeau decided to seek "unilateral" patriation of the Constitution and constitutional change on the basis of a "peoples' package" which would include:

- a charter of rights and freedoms;

- a constitutional commitment to the principles of equalization and the reduction of regional disparities; and

- patriation with a process for adopting an amending formula within two years of patriation.

Unilateral patriation could be achieved through a Joint Address of the two Houses of Parliament to the Queen asking that the Parliament of the United Kingdom end its legislative jurisdiction over Canada's Constitution and authorize the proclamation by the Queen in Canada of certain changes to the Constitution of Canada. Although the Government of Canada had earlier sought provincial consent for some amendments before adopting a Joint Address, the Government maintained that it was not legally required to do so.

Two provinces - Ontario and New Brunswick - supported unilateral patriation, but the majority were opposed. A Special Joint Committee of the Senate and House of Commons studied the proposed Joint Address. For the first time in Canadian history, the Special Joint Committee submitted a constitutional proposal to televised public parliamentary hearings. The result was to create populist support for the unilateral proposal in spite of opposition by most provincial governments. The Canadian Charter of Rights and Freedoms became the focus of attention and succeeding groups argued in favour of entrenched rights.

The eight dissident provinces challenged the unilateral patriation attempt. The courts of last resort in Manitoba and Quebec ruled in favour of the federal government, but in Newfoundland the court ruled against.

The federal government launched an appeal to the Supreme Court of Canada on April 28, 1981. The Court ruled, on September 28, 1981, that unilateral patriation was legal, but inconsistent with the conventions of the Constitution which required the "substantial" consent of the provinces - the support of more than two provinces but less than 10.

In an attempt to respect the conventions of the Constitution, a First Ministers' Conference was convened on November 2, 1981 to seek broad support by governments for the terms of patriation. On November 5, 1981, all governments - except Quebec - signed an agreement to resolve the constitutional issue. Several points related to process and substance are worth noting:

The agreement was worked out by governments behind closed doors.

The agreement included an amending formula and (in the Charter) an override or "notwithstanding" clause that had not been subjected to public scrutiny during the unilateral process.

Some later adjustments were made to the agreement through executive consultations before the two Houses of Parliament were asked to adopt the constitutional resolution. For example:

- all governments, in the consultations, after November 5, to add a provision to the amending formula which would require reasonable federal compensation to a province that opted out of any future amendment transferring jurisdiction over education or other cultural matters to Parliament; and

- the Premier of Manitoba dropped a condition that the provincial assembly determine whether the Charter's minority official language rights should apply in that province.

In short, in spite of the strong involvement of the people in the unilateral process, governments reverted to executive federalism when they adopted a multilateral process. But there were two notable exceptions.

The unilateral resolution that had been submitted to the Supreme Court recognized and affirmed the Aboriginal and treaty rights of the Aboriginal peoples of Canada. This part of the resolution was dropped on November 5 as a condition for provincial support. The resolution had also contained an absolute guarantee of the equal application of the Charter's rights and freedoms to male and female persons. This guarantee was made subject to the "notwithstanding" clause.

When Aboriginal leaders and women's groups protested, the Prime Minister said he would restore the original provisions if the Aboriginal and women's groups could convince the nine premiers who signed the November 5 agreement to do so. Both the Aboriginal peoples and women mobilized their resources and campaigned vigorously across the country. One by one, each premier agreed, and when the Constitution was finally patriated on April 17, 1982, it included Aboriginal rights and gender equality rights without an override. It may be argued that, through this experience, Aboriginal leaders and women's groups became significant political actors in the constitutional debate.

Indeed, the patriated Constitution contained a provision requiring First Ministers' Constitutional Conferences be held to identify and define the Aboriginal rights which were to be included in the Constitution. Representatives of the Aboriginal peoples of Canada and elected representatives of the two territories were invited to participate in the discussions at the conferences. Quebec attended the conferences as an observer, but would not agree to active participation until after its own constitutional grievances had been addressed.

One constitutional amendment on Aboriginal issues was proclaimed prior to the last constitutionally mandated conference in March 1987, but the key emerging issue of Aboriginal self-government remained unresolved. However, the conferences did create a precedent for what I would call extended executive federalism, because all parties around the table represented governments or, in the case of the Aboriginal participants, what might be called "governments in waiting".

On the eve of the negotiation of the Meech Lake Accord, the precedents for constitutional negotiation were becoming complex.

From 1968 to 1972, in 1978-79 and in 1980, the agenda was comprehensive and the process was restricted to multilateral executive federalism.

In 1975-76, the agenda was very narrow and the process was one of secret bilateral executive federalism.

In 1975-76, the agenda was very narrow and the process was one of secret bilateral executive federalism.

In 1976 and 1978, there were federal proposals for unilateral action by Parliament.

In 1980-81, the agenda was narrow in scope ("the peoples' package") and the process was unilateral with broad public involvement through parliamentary hearings.

In November 1981, the agenda remained narrow in scope but the process reverted to multilateral executive federalism until November 5 and thereafter involved further executive accommodation as well as direct lobbying action by two major groups.

From 1983 to 1987, the process was one of extended executive federalism, with the participation of representatives of the Aboriginal peoples and the territories, but the agenda was limited to matters directly affecting the Aboriginal peoples of Canada.

Therefore, no clear pattern for the negotiation of multilateral amendments emerged over the two decades of discussion that began in 1968. The amending formula established at the time of patriation in 1982 is silent on this point, except for discussions on matters directly affecting the Aboriginal peoples. It is explicit about the role of the Senate, the House of Commons and the provincial legislative assemblies in authorizing the proclamation of amendments, but it does not indicate by what means a commonly agreed upon text in both official languages should emerge.

It is against this background that one must assess the Meech Lake exercise.

Quebec in Isolation, 1982-87

Quebec was not party to the November 5, 1981 agreement on the terms of patriation. On December 1, 1981, by resolution, the National Assembly rejected the patriation package. The Constitution Act, 1982 was, nonetheless, proclaimed and the Supreme Court subsequently ruled that Quebec had no veto in law or practice to exercise over patriation of the Constitution: Quebec was legally bound by the Constitution Act, 1982.

The Government of Quebec adopted the view that the Constitution Act, 1982, though legal, was politically illegitimate because it curtailed the legislative jurisdiction of the National Assembly without its consent. Quebec announced it would not participate in further multilateral constitutional discussions until its own constitutional issues had been successfully resolved.

The Quebec Liberal Party came to power in December 1985. Unlike the Parti Québécois government, which had 22 constitutional demands including the virtual removal of Quebec from the application of the Canadian Charter of Rights and Freedoms, the Quebec Liberals had only five. The way appeared to be open to a successful conclusion of the Quebec issue.

Quebec had been excluded in November 1981 through an exercise of executive federalism. It is not surprising that political actors assumed that Quebec's reintegration into the constitutional family could be achieved through executive federalism. However, the process of executive federalism they adopted was new: no multilateral mechanisms were put in place, such as the Continuing Committee of Ministers on the Constitution or the Continuing Committee of Officials on the Constitution, and no deadlines were set in advance.

Rather, a double process of bilateralism was established for the "vérification des préalables": formal negotiations would not be launched unless the minimal conditions for success had been met. Gil Rémillard, the Quebec Minister responsible for Constitutional matters, met each of his provincial counterparts individually, and after each meeting, he briefed Senator Lowell Murray, the federal Minister. Senator Murray met with each of the provincial ministers individually and briefed Gil Rémillard after each meeting to ensure that there were no misunderstandings or misinterpretations.

The Meech Lake Accord, April 1987

Only when this double process of bilateral executive federalism produced a reasonable assurance that the political will to reach an accommodation with Quebec had emerged was a multilateral meeting of officials convened in Ottawa, March 5 and 6, 1987. This led to a First Ministers' Conference at a secluded retreat at Meech Lake in the Gatineau Hills, just north of Ottawa, on April 30. Agreement in principle was reached. Quebec held public hearings on the agreement in principle while federal and provincial officials refined a legal draft that had been prepared by the federal Department of Justice. First Ministers met again in the Langevin Block in Ottawa June 2 and 3, 1987, and unanimous agreement was reached on the legal text of a constitutional amendment resolution.

The Ratification Process

Broad public support greeted the signing of the Meech Lake Accord. Quebec moved quickly to approve the constitutional resolution on June 23, 1987, thereby initiating the ratification process. Because Quebec said that all five of its conditions had to be addressed to end its constitutional isolation, the constitutional resolution was drafted as an unseverable whole. Since the resolution contained amendments requiring unanimous legislative approval - for which there was no time limit for ratification - and amendments requiring the consent of Parliament and two-thirds of the legislative assemblies representing at least 50 per cent of the population - for which a three-year time limit existed - it was held that:

The constitutional resolution would have to be adopted by all legislative assemblies and Parliament; and

Unanimous ratification would have to be achieved within three years.

Parliamentary hearings were held on the resolution, but no amendments to it would be contemplated by the Government unless there was an egregious error: any change would have to be renegotiated with the provinces and would invalidate the resolutions already adopted. Gradually, various voices started to express concerns. Women's organizations, multicultural groups, Aboriginal peoples and the territories said their interests had been ignored or would be jeopardized or harmed by the proposed changes. Canadians, particularly in Western Canada, felt the new unanimity rule for Senate reform would make reform impossible. What had been conceived of by governments as the Quebec Round of constitutional negotiations, which would open the door to further constitutional changes, was perceived by many as excluding the interests of others.

To growing popular dissatisfaction was added another factor that made ratification problematic. In October 1987, the government of New Brunswick was defeated by an opposition that had clearly stated it would not ratify Meech Lake Accord unless it was amended. Subsequently, the governments of Manitoba and Newfoundland fell. This meant that three of the premiers had not signed the Meech Lake Accord. The acord was a political agreement, but it was not legally binding.

During the ratification process, no public hearings on the resolution were held in Saskatchewan, Alberta, Nova Scotia, British Columbia or Newfoundland. Nor were they held in Quebec, where hearings had been held on the agreement in principle, but not the legal text. Hearings that did not produce changes to the legal text were held by the House of Commons (jointly with the Senate on one occasion, separately on another), Prince Edward Island and Ontario.

Hearings in New Brunswick suggested the desirability of changes, perhaps through a companion (or supplementary) resolution, and hearings in Manitoba also suggested changes - notably the adoption of a "Canada clause" to embrace all of the basic characteristics of Canada, and not just Quebec's distinct society. Separate hearings by the Senate resulted in changes to the resolution by the Senate.

It became clear in the course of public hearings that the proclamation of the Charter of Rights and Freedoms in 1982 had had a profound effect on Canadian society: it had created a sense of empowerment, particularly among minorities, and a sense of ownership of the Constitution. Furthermore, the Charter gave Canadians a fundamental legal tool to challenge federal and provincial government action.

New Brunswick proposed a companion resolution to address the concerns of those who felt excluded from the Quebec Round. The House of Commons held hearings on New Brunswick's companion resolution and responded affirmatively.

By early June 1990, two provinces - New Brunswick and Manitoba - had not ratified Meech Lake and one - Newfoundland - had rescinded its earlier approval. From June 3 to June 9, First Ministers met in another exercise of executive federalism, in private. On June 9, they issued a communiqué that seemed to provide the basis for successful ratification of the Meech Lake Accord, but that did not transpire.

The failure of Meech was attributed in large measure to two factors: process and substance. On the question of process, it was clearly unsatisfactor not to involve the public in the hearings until every legal detail had been locked in. It was also felt that the indivisible character of the constitutional resolution, with the double constraints of unanimity and the three-year time limit, might be at issue, and that perhaps the amending formula itself might need to be reexamined. On the question of substance, it was clear that outside Quebec there was no broad public understanding and support for a limited Quebec Round. There was instead a desire to be comprehensive and inclusive.

After the failure of Meech, it might have been preferable to pause, reflect and await a more opportune time to return to constitutional issues. That could not be.

After the Death of Meech, June 1990

Meech died on the eve of La St-Jean Baptiste, the national holiday of French-speaking Quebecers. June 24 is a public holiday in Quebec and the streets of Montreal teemed with blue and white provincial flags as nationalist sentiment ran high. Polls suggested that more than 60 per cent of Quebecers would have supported sovereignty if a referendum were held at that time. Indeed, sovereignists called for an immediate referendum.

Throughout the rest of Canada, feelings were also running high. In some quarters, there was a call for Quebec to become a province like all the others or to depart - and not necessarily on the most generous terms. There was anger also among those who had felt excluded from the Quebec Round and who wanted to see their constitutional goals realized.

During the summer of 1990, a crisis developed when Mohawks at Oka, Quebec, put up barricades in the course of a dispute with the townspeople and the Quebec Provincial Police. A settlement was eventually reached, but not until after a death occurred and the Canadian Armed Forces had been drawn in. One effect of the Oka crisis was to highlight the need for governments to address longstanding Aboriginal constitutional concerns, including the issue of Aboriginal self-government.

The atmosphere was volatile and it was imperative to buy time until cooler heads and more rational analysis could prevail. The situation was most acute in Quebec. To the perception of the "betrayal" of Quebec by the rest of Canada on November 5, 1981 was added the perception of "rejection" of Quebec by the rest of Canada on June 23, 1990.

Approaches to Constitutional Reform, 1990-92

Quebec’s Allaire Committee

The Quebec Liberal Party reaffirmed its support for Meech in February 1990 during the last period of the Meech Lake ratification process, and established an internal commission, under the chairmanship of Jean Allaire, to develop a constitutional position for the round of negotiations that would follow the proclamation of Meech. The Allaire Report, published on January 28, 1991 - after the demise of Meech - represented a radical departure from the five conditions that had led to the Accord.

The Meech Lake Accord had been high on symbolism, affirming the right of Quebec to be an active participant in Canada's future constitutional development. It would have recognized Quebec as a distinct society within Canada, entrenched the existing statutory requirement that three of the nine Supreme Court judges come from the Quebec civil law bar, provided a veto for Quebec - and all other provinces - over the reform of national institutions and the creation of new provinces in the territories, established a constraint on the exercise of the spending power of Parliament and expanded the jurisdiction of Quebec over immigration (an area of joint jurisdiction under the Constitution).

The Allaire Report - which was adopted by the Quebec Liberal Party - rejected this approach and focused squarely on a new distribution of powers that would expand the jurisdiction of Quebec considerably at the expense of the federal Parliament. It recommended a new Canadian political structure that would reinforce the Canadian economic union while providing political autonomy for the Quebec State, principally by establishing exclusive Quebec legislative jurisdiction over 22 areas, ranging from social affairs, culture, health, family policy and manpower policy to communications, the environment, agriculture and public security.

The report also recommended that a Quebec referendum be held before the end of the fall of 1992, either on a Quebec-Canada proposal for reform or on the accession of Quebec to sovereignty.

The Allaire Report was an attempt to deal with the high level of nationalist sentiment in Quebec in the wake of the failure of Meech, but many interests in the rest of the country rejected it as unrealistic.

Quebec’s Bélanger-Campeau Commission

On September 4, 1990, the Quebec National Assembly established an "extended" legislative commission, composed of 36 persons, including 17 who were not elected politicians and who represented municipalities, unions, cooperatives, the cultural milieu, business and education. The elected politicians on the commission included three Quebec MPs from the federal Parliament. It was co-chaired by Michel Bélanger and Jean Campeau.

The commission's mandate was to examine the political and constitutional status of Quebec and to make recommendations to the National Assembly. Its composition was designed to foster as broad a consensus as possible among Quebecers. The commission held televised public hearings in 11 cities and towns in Quebec, received 607 briefs and heard 237 groups or individuals.

The Bélanger-Campeau Commission concluded in its Report on March 27, 1991 that there were two possible solutions to end the impasse between Quebec and the rest of Canada:

- a profoundly altered federal system; or

- Quebec sovereignty.

The Commission recommended that the National Assembly:

- adopt a referendum law that would require a referendum on sovereignty as early as June 8, 1992 and no later than October 26, 1992; and

- establish two legislative commissions, one to examine the question of Quebec's accession to sovereignty and one to examine any offer of renewed federalism that the Government of Canada and the other provinces might bring forward.

Three consequences flowed from the acceptance of these recommendations by the National Assembly:

- The constitutional debate could not be avoided.

- There would be a timetable for resolving the issue.

- Quebec would not join multilateral discussions in which the governments of Canada and the other provinces might seek agreement on renewed federalism. However, the Allaire Report, which had been adopted by the Quebec Liberal Party, gave a clear indication of the sort of renewed federalism the Government of Quebec envisaged.

Action by Other Provinces and Territories

All other provinces and territories took initiatives to examine the constitutional question, although not at the same time and not by the same means. However, one thing was common to them all: they sought to get a clearer understanding of the views of their respective populations on the Constitution.

The Yukon set up a Select Committee on Constitutional Development on May 14, 1990, and hearings were held before it submitted its report in May 1991.

Prince Edward Island established a special committee in the summer of 1990. It held hearings and reported in September 1991.

New Brunswick created a legislative Commission on Canadian Federalism in September 1990. It held no public hearings, but it did receive briefs and organized roundtables and in camera sessions before reporting in March 1992.

Ontario appointed a select committee in December 1990. It held public hearings before reporting in February 1992.

Manitoba established a legislative Constitutional Task Force in December 1990. It held public hearings and reported in October 1991.

Alberta's Select Special Committee on Constitutional Reform was created in March 1991. It held public hearings and reported in March 1992.

In Nova Scotia, a non-legislative working group was set up in June 1991. It held hearings before tabling its report in November 1991.

Saskatchewan set up a Task Force on Saskatchewan's Future in Confederation in August 1991. It held hearings and reported in February 1992.

Newfoundland established a constitutional committee in September 1991, formed by seven members of the House of Assembly and seven persons from outside the Assembly. It held hearings, but its report to the Premier was not made public.

The Northwest Territories appointed its Special Committee of the Assembly on Constitutional Reform in December 1991, but the committee did not make a substantive report.

British Columbia's Select Special Committee on Constitutional Reform originated in January 1992 and reported in April of that year, following public hearings.

The Spicer Commission

On November 1, 1990, the Government of Canada announced the creation of a commission to promote dialogue among all Canadians and encourage the development of a new consensus about Canada and its future. The Prime Minister stated that much of the consensus Canadians had developed on what constituted Canada and where the country should go had dissipated, and that Canada was running the risk of fracturing along linguistic and regional fault lines. The commission, under the chairmanship of Keith Spicer, was to be "an initiative for the people and of the people", the Prime Minister said, and it was to be "informal and easily accessible."

The mandate was broad and the Spicer Commission moved into largely unchartered waters, not without considerable organizational and other difficulties. It had to cope with widespread cynicism toward politicians and the political process, and a public mood described by a former premier of Ontario as "cranky."

In its Report, tabled on June 27, 1991, the Spicer Commission concluded that Canadians were disenchanted with elected politicians and that politicians of all parties should consider using new techniques to increase grassroots consultation when developing ideas, policies and programs and when solving problems which affect citizens directly. In short, it called for new processes, without recommending the substance that should orient Canada's future constitutional development.

The Beaudoin-Edwards Committee

The Government of Canada also moved on a second front: a Special Joint Committee of the Senate and the House of Commons - the Beaudoin-Edwards Committee - was established on December 17, 1990, to examine the amending formula and the process for achieving constitutional change. The Committee received over 500 briefs, heard 209 groups or individuals while travelling to every province and territory before delivering its report on June 20, 1991.

The principal recommendation of the Beaudoin-Edwards Committee was that amendments now subject to the consent of Parliament and two-thirds of the legislative assemblies (representing at least seven provinces and 50 per cent of the population - known as the 7/50 formula) revert, in essence, to the so-called Victoria formula of 1971. This would have given individual vetoes to both Ontario and Quebec, but to no other province acting alone. The recommendation was roundly denounced by three provinces, which defended the principle of the equality of the provinces. Since changes to the amending formula require unanimous consent, it was clear that this recommendation would not provide a solution for a key question of process.

The Beaudoin-Edwards Report did propose that federal legislation be adopted to enable the federal government, at its discretion, to hold a consultative referendum on a constitutional proposal, either to confirm the existence of a national consensus or to facilitate the adoption of the required resolutions to ratify an amendment. This was not incompatible with government policy revealed a month earlier.

The Federal Proposal

In the May 13, 1991 Speech from the Throne, the federal government announced that Parliament would "be asked to approve enabling legislation to provide for greater participation of Canadian men and women in constitutional change". Two days later, on May 15, 1991, the Quebec government tabled Bill 150 which required a provincial referendum on Quebec sovereignty in June or October 1992, as proposed by the Bélanger-Campeau Commission. The bill was passed on June 20, 1991.

A year later, on May 15, 1992, the federal government tabled its own legislation providing for referendums on the Constitution. It would permit a Canada-wide referendum or a referendum in one or more provinces. Bill C-81 was adopted on June 22, 1992.

Quebec was not the only province that made provision for a constitutional referendum. British Columbia adopted the Constitutional Amendment Approval Act in July 1990. In Alberta, the Constitutional Referendum Act was passed in June 1992. Newfoundland amended its Election Act in June 1992 to allow a plebiscite on constitutional matters "in conjunction with a plebiscite or referendum held by the Government of Canada."

On the issue of substance, the federal government began to take important steps in early 1991. On April 21, 1991, former prime minister Joe Clark was appointed Minister responsible for Constitutional Affairs and Chairman of the Cabinet Committee on Canadian Unity. The committee began to meet weekly and to hold meetings in various centres across Canada, with the avowed purpose of developing federal constitutional proposals for consideration by the people of Canada.

On September 28, 1991, the Government published Shaping Canada's Future Together: Proposals, which set out its proposals for constitutional change. The proposals were broad and far-reaching. They dealt with, among other things:

- the Canadian identity;

- Quebec's distinctiveness;

- the Aboriginal peoples;

- the reform of national institutions;

- the economic union;

- clarifying the distribution of powers, including the spending power, to serve Canadians better; and

- streamlining government.

The Government also published a number of background papers on constitutional issues to inform public debate.

If the proposals were generally broad and far-reaching, there was one respect in which they were not. Only constitutional matters that could be amended with the support of Parliament and two-thirds of the provinces representing 50 per cent of the population (7/50) were actively proposed. While the Government indicated a willingness to contemplate action on certain constitutional matters that could only be changed with the unanimous consent of Parliament and the provinces, this would depend on a consensus emerging both on the substance of the amendment and the desirability of proceeding with such an amendment in the final package. If only 7/50 matters were in the package, and if the elements in the ultimate constitutional resolution were severable, there would be greater flexibility: one need not have the same 7/50 combination on every matter and the danger of paralysing linkages would be reduced.

The Beaudoin-Dobbie Committee

Parliament had established a Special Joint Committee on a Renewed Canada on June 21, 1991, with a mandate "to enquire into and make recommendations to Parliament on the Government of Canada's proposals for a renewed Canada contained in the documents to be referred to it by the Government." The September proposals were duly submitted to the committee - which was eventually known as the Beaudoin-Dobbie Committee.

By November, for a number of reasons including logistics, the committee's work was in question and - with a February 28, 1992 reporting deadline - tensions mounted. It was not clear whether the committee would be able to complete its work successfully and in a timely fashion.

National Conferences

In this context, the Government decided on an initiative that would assist the Committee and, if the committee could not submit a report, would provide an acceptable alternative. Five three-day national conferences would be organized under the arms-length auspices of independent organizations or institutes.

From January 17 to 19, 1992, the Atlantic Provinces Economic Council held a conference on the distribution of powers in Halifax.

From January 24 to 26, the Canada West Foundation organized a conference in Calgary on national institutions.

From January 31 to February 2, the C.D. Howe Institute and the Institute for Research on Public Policy sponsored a conference on the economic union in Montreal.

The Niagara Institute held a conference in Toronto on the distinct society, the Canada clause and the Charter of Rights, February 7 to 9.

The five independent agencies and the federal government shared responsibility for the closing conference, February 14 to 16 in Vancouver.

There were between 200 and 260 participants in each conference. The members of the Beaudoin-Dobbie Committee were invited to all of the conferences, which were held from Friday to Sunday. The conference organizers were instructed to balance the representation from all regions, from the two official languages from men and women when selecting participants from among experts and interest groups.

The federal, provincial and territorial governments, as well as the Aboriginal peoples, each had a number of places. However, the national conferences introduced a major innovation. "Ordinary" citizens were invited to participate in a lottery for about 50 places reserved for the general public at each conference. Applications were classed by preferred conference and by province. Names were then drawn by chance (with a regional balance) and the successful candidate was invited to attend at no cost.

At each conference, working groups of 15 to 20 persons would debate and then report back to plenary sessions, with a final wrap-up session. There was national television coverage of the conferences.

The conferences were a clear success from the organizational and logistical point of view and helped restore credibility to the federal government after the initial tribulations of the Beaudoin-Dobbie Committee. They raised the profile of the constitutional debate and provided good public coverage of often complex issues. The final conference produced what was deemed a "fragile" consensus, which included support for recognition of Quebec's distinct society.

The Government of Canada had agreed in the fall of 1991 to fund a parallel process by the four national Aboriginal associations. Each association held hearings or consultations on constitutional issues among its membership and provided input into the Beaudoin-Dobbie Committee. Furthermore, the Aboriginal associations and the federal government organized a sixth national conference in Ottawa on Aboriginal issues, but it took place on March 13 to 15, after the Beaudoin-Dobbie Committee had reported.

Notwithstanding its early difficulties, the Beaudoin-Dobbie Committee received more than 3,000 briefs and heard 700 witnesses. The committee experienced some high drama as it tried to reach unanimity on a report by its deadline. In the end,  he report was unanimous and the committee met its deadline by a whisker.

By this point, every province had concluded or was nearing conclusion of consultations with the public on constitutional renewal. The federal government had conducted three consultations: the Spicer Commission, the Beaudoin-Edwards Committee and the Beaudoin-Dobbie Committee. Five national conferences had been held. The Aboriginal peoples of Canada had conducted four consultations with their constituents and were soon to hold a national conference. The two territorial governments had also consulted their constituents.

In brief, from the demise of Meech on June 23, 1990 to the Spring of 1992, all governments and the Aboriginal peoples engaged in consultations, but no intergovernmental negotiations were held.

As noted earlier, the precedents established before Meech provided no clear rules for the successful negotiation of a constitutional agreement. Meech itself provided lessons, but no solution.

Multilateral Meetings on the Constitution

It was in this context that Constitutional Affairs Minister Joe Clark launched a new multilateral process on March 12, 1992. It proved in one respect to be the most broadly based exercise in extended executive federalism, because the territories and the Aboriginal peoples were included as full participants in a comprehensive Canada Round of constitutional negotiations. Yet it was also truncated, because Quebec - representing over 25 per cent of the Canadian population - was not at the table. There were 16 delegations at the table, but a seventeenth - Quebec - was absent.

The Multilateral Meeting on the Constitution (MMC), comprised of federal, provincial and territorial ministers and the representatives of four national Aboriginal associations, was chaired by Mr. Clark. Collectively, the members were referred to as the "Principals."

Although it was an exercise in extended executive federalism, the MMC did provide full and frank briefings to the press at the end of each day of its work: each of the 16 members would make a brief presentation and answer questions. It was hoped that in this way a closed process could be opened up and the people of Canada kept abreast of the issues.

The MMC was supported by the Continuing Committee on the Constitution (CCC), comprised of federal, provincial and territorial deputy ministers and the representatives of the four national Aboriginal associations. Four working groups of officials were established:

Working Group 1 examined the Canada Clause - the definition of the fundamental characteristics of Canada - and the amending formula. It was co-chaired by a federal and a provincial official.

Working Group 2 dealt with institutions -- notably with the contentious issue of whether a new elected Senate should have equitable or equal provincial representation. It was chaired by a federal official.

Working Group 3 concentrated on Aboriginal peoples and their inherent and treaty rights. It was co-chaired by a federal, a provincial and an Aboriginal official.

Working Group 4, which turned its attention to the distribution of powers, the spending power, the economic union and a social charter, was co-chaired by a federal and a provincial official.

Reports from the working groups were cleared by the CCC before they were submitted to the MMC.

The multilateral process was to conclude by the end of May in order to set out proposals to Quebec upon which a referendum on renewed federalism - rather than sovereignty - could be held. Progress was slow and difficulties emerged. In particular, Quebec's known demand for a constitutional veto over institutional reform was challenged by governments that claimed an equal Senate had to be part of a constitutional agreement. The federal government's September 1991 proposal of a 7/50 package had to give way to a unanimity proposal, with a number of linkages among the items.

The MMC principals concluded their work on June 11, 1992 without resolving some outstanding issues, including the Senate representation question. At a July 7 meeting of the premiers, with Mr. Clark, the territories and Aboriginal representatives in attendance, agreement was reached on a package which included the inherent right to Aboriginal self-government, recognition of Quebec's distinct society, a Canada clause, an equal Senate, a veto for all provinces over subsequent institutional reform except the creation of new provinces in the territories, and strengthened legislative jurisdiction for the provinces.

The Charlottetown Accord, August 1992

Premier Robert Bourassa of Quebec and Prime Minister Brian Mulroney of Canada were not present at the July 7 meeting and the agreement remained tentative. However, after some bilateral enquiries, Premier Bourassa concluded that the "essence" of the Meech Lake Accord was covered by the July 7 agreement and he agreed to join the other First Ministers at the Prime Minister's summer residence on August 4 and again on August 10 for informal discussions. Territorial and Aboriginal representatives were not present at these discussions, but they were full participants at two further meetings of First Ministers in Ottawa and Charlottetown. On August 28, 1992, unanimous agreement was reached in Charlottetown on the text of the Consensus Report on the Constitution, which became knwon as the Charlottetown Accord.

The one major new element in the Charlottetown Accord was an agreement to readjust representation in the House of Commons to better reflect representation by population to respond to pressures from populous Ontario and fast-growing British Columbia. This constituted a trade-off for equal representation in the Senate. Furthermore, Quebec was given a guarantee in perpetuity of at least 25 per cent of the Commons seats.

The Canada and Quebec Referendums, October 1992

First Ministers also agreed at Charlottetown to hold two referendums on October 26: one in all of Canada, except Quebec, under federal auspices and one in Quebec under that province's jurisdiction. Through negotiations among all governments, it was agreed to put the following question to the people in both referendums: "Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?"

In British Columbia and Newfoundland, no legislation was necessary to allow the federal referendum to supplant the provincial one. In Alberta, the Constitutional Referendum Act was amended on September 22 by Bill-54 which allowed federal legislation to displace provincial legislation for the purposes of the October 26 referendum.

In Quebec, Bill 36 had been introduced on May 14, 1992, and adopted on June 19 to allow the provincial government to delay until September 9 a vote on the question to be put in the referendum. Bill 44, introduced on September 3 and adopted on September 8, provided for a question on the Charlottetown Accord, and not sovereignty, in the provincial referendum.

As a political matter, it was agreed among leaders that the referendum would have to be supported in all provinces in order to pass, although this was not legally required.

Notwithstanding the unanimous agreement of 11 First Ministers, two territorial Government Leaders and four Aboriginal Leaders, the referendum campaign did not go well.

To facilitate debate and understanding, the text of the Charlottetown Accord was sent to every household in the country. When the legal drafts thta would give effect to the Accord were agreed upon on October 9, copies were made available to the public at post offices throughout the country.

There is no clear explanation why the people of Canada did not approve the Charlottetown Accord in the referendum. There are some indicators.

The YES committees were poorly organized at the outset. The Accord was sold largely as an honourable compromise that would avoid the unhappy consequences of failure, rather than as a stirring vision of the future. The NO committees attacked specific elements of a large and complex agreement, often arguing that the whole deal should be rejected because of one element that was deemed unacceptable. The sense of popular empowerment and ownership engendered by the proclamation of the Canadian Charter of Rights and Freedoms in 1982 probably reinforced the desire to seek full satisfaction on specific items and perhaps lessened interest in the broader picture and the ultimate need for compromise.

In some quarters, the 25 per cent guarantee of Commons seats for Quebec offended democratic sensibilities. In others, it fed anti-Quebec sentiment. Some people called for a clearer understanding of exactly what Aboriginal self-government would entail. Others maintained that the equal and elected Senate had been bought at the cost of ineffectiveness. Some women's groups felt that gender equality issues had not been adequately addressed. Aboriginal leaders said that there had not been enough time for them to study the legal drafts and arrive at a proper assessment.

Preston Manning, Leader of the Reform Party, played upon the disenchantment of electors with politicians and presented the agreement negotiated by 17 parties as "the Mulroney deal."

In Quebec, there was hard-core sovereignist opposition in the order of 30 per cent to begin with. Early in the campaign, tapes of a private telephone conversation between two of Premier Bourassa's top advisors were leaked. They portrayed the Premier as weak in the final negotiations and as having settled for too little to satisfy Quebec's interests. Later in the campaign, secret Quebec documents reinforcing these perceptions were leaked and published in a Quebec bimonthly news magazine, L'actualité.

The political requirement of unanimous provincial consent compelled leaders in each province to prove that that province was a "winner." This was often done by trying to "score" off the interests of other provinces.

The people of Quebec and British Columbia remained opposed to the Charlottetown Accord throughout the campaign. One polling expert believes that the first week of October was decisive. Following the October 1 attack on the Accord by Pierre Trudeau and polling results that indicated Quebec would not vote in favour of the Accord, many Canadians, he claimed, felt liberated from the obligation to vote yes in the name of national unity. There was a dramatic drop in support of 20 per cent after the first week in October, and the loss proved irreversible.

On October 26, 1992, the Accord was rejected by a majority of Canadians in a majority of provinces, including a majority of Quebecers and a majority of Indians living on reserves. Among Canadians outside Quebec, 54 per cent said no, while 56.6 per cent of Quebecers also rejected the Accord. Among Indians living on reserves, 62 per cent also said no. In Ontario, the yes option won narrowly by 49.8 per cent to 49.6 per cent; 29,000 rejected ballots that made up the balance. If this picture seems particularly negative, it should be noted that almost 4,500,000 Canadians outside Quebec, or over 45 per cent of those voting, said yes and 1,700,000 Quebecers, or over 43 per cent of those voting, also said yes. Over 37 per cent of Indians living on reserves voted for the Accord.

Voter turnout was not as high as had been anticipated. The average turnout outside Quebec was 72 per cent and ranged from a high of 76 per cent in British Columbia to a low of 54 per cent in Newfoundland. The turnout in Quebec was high: 82.8 per cent.

A desirable outcome for governments would have been an affirmative vote in all provinces. Failing such a result, the results obtained were probably the next most desirable: Quebecers had not been rejected by the rest of Canada, the rest of Canada had not been rejected by Quebec, Aboriginal peoples had not been rejected by non-Aboriginal peoples. This led to a generalized calm following the referendum, unlike the mood following the failure to ratify the Meech Lake Accord.

Aftermath

What can be said of the process? The period from June 23, 1990 to March 12, 1992 was marked by the most extensive consultations of the Canadian people ever undertaken. The extended executive federalism process that began on March 12, 1992 was complemented by public briefings by all participants throughout the process.

A major weakness was the absence of Quebec from the negotiation process, which meant that Quebec did not participate in shaping the Charlottetown Accord. It also meant that accommodations arrived at in August to bring Quebec on side were highlighted at a very late stage in the process.

Furthermore the slippage in time in reaching an agreement - originally the multilateral process was to have ended in May - meant that the time to explain the deal and dialogue with Canadians was limited: October 26 was a fixed deadline and there was no flexibility. The referendum expanded the process of constitutional change to the broadest level of public participation ever seen in Canadian history.

Has the precedent of a referendum added a new element to the amending process in Canada and, if so, under what circumstances and at what stage in negotiations should future referendums be contemplated?

One thing is clear: while lessons can be drawn from the Charlottetown exercise, it does not provide infallible rules for ensuring the success of future constitutional amendment exercises.

For the time being, no new attempt to deal with constitutional change can be contemplated until after the next federal election which should be held before the end of November 1993, and the next Quebec election, which should be held before the end of September 1994.

The people are weary of the constitutional debate at present and governments are making the economy their immediate priority. But, of course, the constitutional issue is not over: perhaps the eternal search for the perfect constitution will become the defining characteristic of Canada.

On the other hand, if Canadians wish to achieve realistic constitutional change, they might well heed the warning of Voltaire: "The best is the enemy of the good."

Revised text of a paper presented at the 1992 Conference of the Association of Canadian studies in Australia and New Zealand, Wellington, New Zealand, December 16, 1992.

@ Minister of Supply and Services Canada 1994
Cat. No. CP22-52/1994
ISBN 0-662-61173-X