MARY JANIGAN June 15 1987


MARY JANIGAN June 15 1987



They are either the new Fathers of Confederation—or the architects of the nation’s dissolution. They have either brought Que-

bec back into the constitutional family—or subverted the cherished ideal of One Canada. Rumpled and unshaven, the nation’s 11 first ministers descended into the dawn’s early light last week, ending a marathon negotiating session with a historic agreement. But across the country the accord, hammered out over almost 20 hours around an oval wooden table in a downtown Ottawa boardroom, provoked clashing opinions—and passionate debate.

For Prime Minister Brian Mulroney and the 10 provincial premiers, the long night of wrangling had ended with unquestioned success. At 5:30 a.m., after a

series of concessions by various premiers, they had put a new face on the nation’s 120-year-old confederation, producing a unanimous package of constitutional amendments that would secure for each of them a place in the history books of the 21st century. Declared a jubilant Mulroney: “Today we welcome Quebec back to the Canadian constitutional family. Today we close one chapter in Canadian history and begin another.”

‘Distinct’: Most Canadians appeared to share Mulroney’s optimism about the agreement, which recognized Quebec as a “distinct society” and diluted federal powers over shared-cost

programs, immigration and Supreme

Court and Senate appointments. A Maclean's poll, taken by Angus Reid Associates Inc. in the wake of last week’s accord, indicated that 51 per cent of the 1,008 respondents supported the proposals, 27 per cent opposed them and 22 per cent were undecided (page 12). Just over 60 per cent said that former prime minister Pierre Trudeau had not changed their opinion of the accord when he issued a scathing denunciation of it two weeks ago. Although pollster Angus Reid detected uneasiness about the effect of the accord on federal and provincial powers, he concluded, “Canadians, for the most part, appear to be prepared to make certain concessions to see the matter dealt with.”

But the poll only hinted at the fervor of the debate over whether Mulroney

had ceded too many federal powers to secure Quebec’s blessing. The controversy split the Liberal party into factions and triggered smaller rifts within the Conservative and New Democratic parties. It also drew scorn from academics, lawyers and such activist groups as the National Anti-Poverty Organization-many of whom condemned the haste which they said surrounded the final agreement. For the accord’s supporters, such as Liberal Leader John Turner, last week’s deal

was “a good one for Quebecers and a good one for all Canadians.” NDP Leader Ed Broadbent issued a similar endorsement. But for opponents such as Stephen Scott, a constitutional law professor at Montreal’s McGill University, the accord was a “buy now, pay later” deal. Said Scott: “Canadians will never be able to stop paying, and they will never be able to cancel the contract.”

Strenuous: Strong words—and the debate had only begun. Both Parliament and all 10 provincial legislatures must ratify the accord after it is first introduced into Parliament or the assemblies of all 10 provinces. So all governments face a deadline. Manitoba, New Brunswick and Ontario—the only province with a minority government—promised legislative committee hearings on the proposal. Late last week, in a nationally televised speech, Mulroney also promised “meaningful public participation” in the debate—probably through hearings of a joint Senate-Commons committee. But however strenuous the opposition, those committees may be unable to change the accord—because all 11 governments must consent to changing even a single word or punctuation mark.

For Mulroney, the gain of securing Quebec’s participation in the constitutional process clearly exceeded the loss

of federal power. “Because Quebec was not a signatory to the Constitution, there were two Canadas emerging when this government took office—those Canadians who had accepted the Constitution and those who had been left out,” he said in his television address to the nation on Thursday night. “Now there is one Canada, strong and united.”

Concern: That unanimity was born in a brutal 19 V2 -hour negotiating session that stretched from 10 a.m. on

June 2 to 5:30 the next morning. Mulroney and the premiers had agreed on a package of six constitutional amendments on April 30—the socalled Meech Lake accord. But throughout May, as critics of the agreement gathered and Trudeau broke nearly three years of silence to denounce it, concern mounted over the wording of two of the six clauses.

Both Ontario Premier David Peterson and

Manitoba Premier How-

ard Pawley were concerned about a provision that allowed a province to opt out of future national shared-cost programs and receive compensation if it undertook “its own initiative or programs compatible with national objectives.” They wanted to ensure that provinces spent federal funds on programs that met federal criteria. Quebec Premier Robert Bourassa, in turn, wanted to ensure that the courts could not diminish the importance of a clause

recognizing Quebec as a “distinct society.” Peterson, in contrast, wanted to ensure that the distinct-society provision did not trample multicultural and aboriginal rights.

Closeted: And so the

marathon began. In a personal account of the session for Maclean's, Prime Minister Mulroney wrote that by the 14th hour, “I had made it quite clear that we were going to go on until we either got an agreement, or didn’t” (page

15). The premiers and Mulroney were closeted in a fourth-floor boardroom of the Langevin building across from Parliament Hill with Norman Spector, secretary to the cabinet for federal-provincial relations, and Oryssia Lennie, an Alberta official who represented the provincial governments. The remaining federal and provincial bureaucrats gathered in a large conference room next door to the first ministers.

Stretched: During the day, night and early morning hours, premiers huddled in privacy with their advisers in small offices down the hall from the two large conference rooms. That physical layout determined how the negotiations operated: Mulroney and the premiers would draft a text; a stenographer would make copies of that text; then the first ministers would carry the text to their delegations, discuss it and return to the room with their formal reactions. Newfoundland Pre-

mier Brian Peckford said that the process happened 15 to 20 times as the negotiations stretched through the night: “There were all kinds of new wordings coming up and new phrases and new proposals.”

Mulroney and the premiers began with a discussion of the spending-powers clause—but initially failed to resolve their problems. After a cold lunch of ham on dark bread, they turned to the distinct-society problem, arguing throughout the afternoon and into the night. At 2 a.m. they finally settled on a text. The revised clause still recognizes that Quebec constitutes a “distinct society”—and that the role of the Quebec legislature and government is “to preserve and promote the distinct identity of Quebec.” But the amended text no longer recognizes the existence of French-speaking Canada and Englishspeaking Canada. Instead, it recognizes “the existence of French-speaking Canadians, centred in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec.” The revision also stipulates that the distinct-society clause does not affect the powers of Parliament or the

legislatures, “including any powers, rights or privileges relating to language.”

The first ministers then turned back to the controversial spending-powers clause—and the first flashes of discord appeared. Bourassa was dismayed by the fact that Peterson had joined Pawley in a bid to weaken that clause. At one point the Quebec premier stood up, slammed a copy of the Meech Lake accord on the table and exclaimed, “It will be Meech Lake, nothing more, nothing less.” Mulroney was alarmed because Bourassa is not usually theatrical. The Prime Minister called a 20-minute re-

cess—and Bourassa stalked into a nearby office with his advisers.

British Columbia Premier William Vander Zalm trailed after Bourassa, reassuring him:

“Don’t worry. We’ll settle this tonight.” And another round of bargaining began.

Yielded: The breakthrough came when Bourassa yielded. The Meech Lake accord had stipulated that Canada must provide reasonable compensation if a province “opts out” of a future national shared-cost program in an area of provincial jurisdiction.

But, added the accord, that province must undertake “its own initiative or programs compatible with national objectives.” It remained unclear who would set national objectives—Ot-

tawa or the provincial governments. Last week Bourassa agreed to add the phrase “that is established by the government of Canada” to describe any new shared-cost program. He also agreed to change “with national objectives” to the more specific “with the national objectives.” A senior Mulroney aide later told Maclean's, “Once Bourassa moved on the spending power, it was clear that he wanted to make a deal.”

It remains for the constitutional experts—and eventually for the courts— to determine exactly what Bourassa achieved. When Trudeau brought the Constitution home from Britain in April, 1982, with a Charter of Rights and Freedoms and an amending formula, Quebec did not consent to the process. On Dec. 6, 1982, the Supreme Court of Canada ruled that the process had been not only constitutionally lawful but conventionally proper —and that the Constitution applied to Que-

bec. Infuriated, Quebec refused to participate in subsequent constitutional conferences. But in a legal sense, it was always “in” the Constitution. As McGill law professor Scott explained: “When Mulroney talks about bringing Quebec into the constitutional family, that is a political concept, not a legal concept. The accord is the price to stop them sulking.”

Sweatbox: That, of course, is the nub of the current debate: is the peace worth the price? Carleton University political scientist Robert Jackson said that the amendments “will make Canada more difficult to govern. Canada is

to become the most decentralized government on earth.” University of Toronto historian Desmond Morton, another critic of the deal, told Maclean’s: “The general emotion among Canadians is puzzled anxiety, if not dismay, that constitutional change was reached in such a short time. People are more used to seeing 200 steelworkers get a contract through this kind of sweatbox, 20-hour grinder.”

Wound: In contrast, Peter Leslie, the director of Queen’s University’s Institute of Intergovernmental Affairs, lauded the accord as a fair means of ending an intolerable rift. “I think it is difficult for the rest of us to think ourselves into the position of Quebecers,” he said. “So this repairs the damage. It completes an old agenda.” Quebec’s newspapers echoed the feeling that Mulroney and the premiers had healed an aching wound. Declared a headline in Montreal’s Le Devoir. “Canada says yes to Quebec.”

That acclaim—and the first ministers’ revisions—did not placate the accord’s critics. Liberal MP Donald Johnston, who resigned from his party’s shadow cabinet last month to oppose the accord, pointed out that the distinct-society clause stipulates that it does not affect the powers of Parliament or the provincial legislatures. But, Johnston said, it does not protect the Charter of Rights and Freedoms in a similar fashion. He told Maclean's: “I believe the accord now tramples on the rights of the Charter, including education rights.” Johnston added that he intends to ask each premier to refer the

accord to his province’s courts for a legal interpretation. “Before this is adopted,” said Johnston, “Canadians should know what lies ahead.”

Other clauses remain equally controversial. Critics attacked the proposals that Ottawa will make appointments to the Supreme Court and the Senate from provincial lists. Said McGill’s Scott: “In the end it will be hard to escape appointing anyone that the province wants —and what if that is a Quebec nationalist ideologue with separatist leanings?” Others criticized the provision that all 11 governments must consent to changes to such federal institutions as the Senate and the Supreme Court. Said historian Morton: “We had a hostile rigidity in 1982.

Now it is not as hostile and certainly more rigid.” Other critics expressed concern about a clause that locked a 1978 immigration agreement between Ottawa and Quebec into the Constitution.

So, in the end, the unease remained. Turner, for one, could not quell the 10 to 12 MPs in his 40-member Commons caucus who oppose the accord—he was forced to let the dissenters dissent. The former prime minister said in his own televised speech on Thursday that he would try to convince them that the accord is good for the land. Then he added, “I think I am on the right side of history.” That is a claim that both the first ministers and their opponents will espouse as the debate proceeds. And it is a verdict that only time can render.