COVER

WHO SPEAKS FOR CANADA?

THE CONSTITUTIONAL PROPOSALS COULD RESULT IN RADICAL CHANGES IN HOW THE NATION WORKS

Anthony Wilson-Smith June 29 1992
COVER

WHO SPEAKS FOR CANADA?

THE CONSTITUTIONAL PROPOSALS COULD RESULT IN RADICAL CHANGES IN HOW THE NATION WORKS

Anthony Wilson-Smith June 29 1992

WHO SPEAKS FOR CANADA?

COVER

THE CONSTITUTIONAL PROPOSALS COULD RESULT IN RADICAL CHANGES IN HOW THE NATION WORKS

They were 36 men gathered together, often divided in their desires and beliefs, but united in their pragmatism and willingness to work towards a common goal. In September of 1864, when the Fathers of Confederation began meeting in Charlottetown, the notion of Canada meant different things to many of them. To French Quebecers, the idea of joining with the English-speaking colonies to create Canada represented the union of two founding peoples. To John A. Macdonald, who was to become Canada’s first prime minister, the union marked the chance to create a new central government with strong powers. And to some other participants, the new Canada was simply their best hope of protecting themselves against the lingering fear of attack from the United States. Partly because of those differences, the document they produced in 1867 creating Canada—the British North America Act—was slim in volume and modest in tone, reflecting neither principles nor goals. When Canada’s founding fathers could not agree on an issue, they put it aside, to be settled in future discussions.

The 36 men who drew up the BNA Act gave Canadians a country to share, the bare outlines of a political system, and the unspoken but implicit understanding that their own responsibilities ended there. The Fathers of Confederation made no promises that they could not keep. Wisely, they seemed to understand that they should not lock the Canada of the future into the values of 1867: in self-effacing Canadian fashion, they avoided the sweeping declarations, often impossible to live up to, that other nascent democracies made in their constitutions. Now, 125 years later, the myriad of politicians, constitutional lawyers, bureaucrats, native leaders and members of other special-interest groups busily reshaping Canada’s Constitution have apparently turned their backs on those simple—but still sound—principles.

For months, Ottawa’s private polling has shown that the fondest hope of many people is that the constitutional crisis be resolved quickly and in a way that minimizes any upheaval in their daily lives. Canadians are almost certain to be disappointed. If the current round of talks aimed at revamping the Constitution is successful, it will result in a dizzying series of changes to what governments can—and cannot—do. With such changes entrenched in the Constitution, Canadians may never again be allowed to overlook their gender, language of origin, area of residence or ethnic distinctions when they consider their political institutions.

Ironically, Quebec, the province that has traditionally pushed the hardest for constitutional change, is not a participant in the present talks (page But Premier Robert Bourassa’s provinces and assorted other participants are contemplating a Canada that raises far more questions than answers. The equal, elected and effective Senate, for one, that some provinces propose would make Canada politically far more similar to the United States at the very time that Americans are profoundly questioning their own system. Other proposals for Senate reform, such as special representation for women and francophones and more voting power for senators from larger provinces, also have the potential to create a powerful but fragmented upper chamber that could bring Parliament to a standstill. Such a reformed Senate could kill or paralyse legislation that does not satisfy the differing groups.

Weapon: But who speaks for Canada? In many ways, the current constitutional-reform process has become the hostage of special-interest groups that are driving it in several, often conflicting directions (page 19). Those groups hold a powerful weapon: many of the country’s politicians have become so cowed by public opprobrium with politics that they are unwilling to risk claims that they are ignoring any element of society. At one set of constitutional talks during the spring in Toronto, there were more than 600 accredited representatives of different delegations—yet only 12 were duly elected politicians from the federal government, provinces or territories.

For many Canadians, if the constitutional changes are accepted, their first shock will come when they approach the ballot box, and continue when it comes time to seek action through their elected representatives. In response to lobbying from the National Action Committee on the Status of Women, Constitutional Affairs Minister Joe Clark—with the tacit approval of other participants—has suggested that women be guaranteed a certain percentage of seats in an elected Senate. But neither Clark nor the committee has addressed the issues raised by such a measure: should those female senators represent only the concerns of women, and should male senators even involve themselves with women’s issues because they cannot presume to have the same expertise? If some senators’ votes would count for more than others—as Clark also has suggested is possible—would the designated women senators be allowed extra weight for bills on such women’s issues as pay equity or abortion? Could a man challenge such a distinction as discriminatory?

Thorny: There are no clear answers—only the certainty that the current negotiations have opened a Pandora’s box of issues that may be impossible to resolve. Among them is the notion of guaranteed francophone representation in the Senate. Under that plan, accepted in principle by Ottawa and most provinces, any legislation affecting language issues would have to be passed by an overall Senate majority as well as a majority of designated francophone senators. But that presents another thorny issue: what constitutes a francophone? Some Quebec nationalists argue that Pierre Trudeau was more anglophone than francophone because of the influence of his Scottish mother. Some Quebecers regard Prime Minister Brian Mulroney as a francophone, despite his English-speaking upbringing. Candidates could state their designation, but that raises the possibility that bilingual anglophones opposed to legislation supporting French-speaking rights might declare themselves as francophones in order to fight such legislation. And could a francophone woman run as a designated francophone, designated woman and regular Senate candidate in the same election?

Privately, many politicians involved in the process warn that the most uncertain and potentially vexing questions surround the agreement to constitutionally acknowledge the right of natives to govern themselves. That agreement makes no attempt to define the terms of self-government. Instead, it offers a three-year waiting period from the time a new constitutional deal is ratified for natives to come to an agreement with Ottawa. But few experts believe that it is possible to achieve the varied, complex agreements required with each of Canada’s more than 600 aboriginal bands in that time. It also remains unclear what Clark means when he says that provinces may be allowed to “opt in and opt out” of such agreements. Does recognizing the right of self-government make aboriginal nations the legal equal of—or, in some ways, superior to—the provinces? Will a native committing an offence be judged under the same law as other Canadians? Will self-government enable Canada’s 600,000 aboriginal people to be more self-sufficient, or will it isolate them further from the North American mainstream?

The questions are seemingly endless. For Canada’s original Fathers of Confederation, those were not the sort of issues to be dealt with in a constitution. Today’s negotiators appear far more willing to stamp their own values onto the country’s most important document. The discussions may end in failure. Ottawa may prefer to see the current talks scuttled in order to present Canadians with a vastly pared-down list of proposals (page 21). But if they succeed in their present form, the negotiations may leave future Canadians with a legacy that could be regarded as more a cumbersome, dated heirloom than a welcome gift.

ANTHONY WILSON-SMITH in Ottawa