THE CONSTITUTION

In Search Of A Nation’s Heart

MARY JANIGAN June 11 1990
THE CONSTITUTION

In Search Of A Nation’s Heart

MARY JANIGAN June 11 1990

In Search Of A Nation’s Heart

THE CONSTITUTION

COVER

Perhaps the Fathers of Confederation erred when they cobbled together their spartan Constitution throughout the grey

autumn of 1864. There are no resounding declarations of the rights of man. There are no spirited evocations of Justice and Liberty. There is no reference at all to two founding nations. The 36

Fathers, mostly lawyers and developers, had no interest in poetry: they simply wanted to set down prim rules to direct governments in their new Dominion of Canada. Almost 13 decades later, no schoolchildren recite their prose or pledge patriotic allegiance to their Constitution. Almost 13 decades later, their handiwork is dismissed as

irrelevant or, even worse, boring.

That is wrong. As Canada’s First Ministers struggled this week to salvage the Meech Lake accord, they were only writing the latest chapter in the fascinating constitutional saga of the nation. A scan through the decades of constitutional conferences reveals drama and passion: there are dignified principles and scurrilous deals; there are zealous denunciations and ruined careers; there are un-

bending stands and pragmatic compromises; there are evolving political values and jostling powers.

Most important, there are constitutional events and constitutional phrases that touch the lives of every Canadian. Every word in a constitution is important. Every word can affect the shape of the government or the fabric of people’s lives. The Supreme Court of Canada,for one, used the seemingly uncontroversial right to “security of the person” in the Canadian Charter of Rights and Freedoms to strike down Canada’s former abortion law. The Constitution is not irrelevant. And it is surely not boring.

As Canadians once again agonize over the shape of the nation, it is instructive to recall the vast sweep of that nation's history. It explains why Canada is still locked in a seemingly endless constitutional debate—and why the premiers are still fighting over apparently arcane phrases. The conflict is primal: for the English Fathers of Confederation, the descendants of the conquerors of Canada, Confederation meant the creation of a strong central government over four provinces; for the French Fathers of Confederation, the proud survivors of that conquest, Confederation meant the union of two founding nations.

For decades, those two sources of tension have enlivened and wearied the nation: all provinces war with the federal government for power; Quebec struggles to preserve its role as a founding nation, while the other provinces veer between frustration and sympathy. Those basic tensions are the reason that governments pay so much attention to constitutional debates: every deal means more or less power, and more or less money, for the governments that make them. Every deal could affect the balance of power between Ottawa and the provinces, between French Canada and English Canada.

But if there is a sameness to Canada’s constitutional crises, there is also something very different about this spring’s painful debate. The centrepiece of the current struggle, the Meech Lake accord, is designed to win Quebec’s acceptance for the 1982 constitutional package that transferred Canada’s Constitution from Britain with an amending formula and a charter of rights. Meech Lake recognizes Quebec’s distinct society, its long struggle to preserve its language and its culture, its role as a founding people.

But Canada has changed since the Fathers of Confederation drafted their coolly legalistic deal. The English majority has disappeared. English Canada is now anglophone Canada: the Englishspeaking descendants of many races and many cultures. All races, including native Canadians, now claim that they have a distinct identity. Quebec’s vision of two founding nations is clashing with the multicultural, multiracial reality of Canada. The First Ministers must somehow balance those two views. But then the constitutional history of Canada is the history of balancing opposing views.

European Conflicts Led To Early Tensions

■ The colonial history of Canada begins with the struggle between two empires, the British and the French. Throughout the 17th century, lured by tales of fabulous wealth, both powers established colonies in North America. The French founded their first permanent European settlement, Port-Royal, in Nova Scotia in 1605. Two years later, the English established their first settlement in Virginia. For the next 150 years, as traders and explorers and soldiers, the two sides jostled against each other. Whenever war was declared in Europe, hostilities deepened in Canada. Whenever peace was contracted, colonies changed hands. In 1713, with the Treaty of Utrecht, for one, France surrendered Newfoundland and Acadia.

Despite that volatile atmosphere, the French retained almost uninterrupted possession of Quebec and the shores of the Great Lakes. In 1608, Samuel de Champlain, the founder of French Canada, began to build a trading post at Quebec City. Nearly 140

years later, there were 50,000 French colonists in New France and Louisiana—and they had nurtured a unique cultural identity, far different from that of the motherland. As historian Donald Creighton, who died in 1979, once noted: “New France had certain institutions, certain patterns of action, certain cultural values, which were adjusted to the new environment and which were to show enormous powers of endurance. Perhaps New France was too small to win victory. But she was big enough, and old enough, to survive defeat.”

That challenge came with the Seven Years War. On Sept. 13,

1759, British Maj.-Gen. James Wolfe captured Quebec from the Marquis de Montcalm, Louis Joseph de Montcalm. The 15-minute battle was fierce. Both generals died. Four years later,

King Louis XV quietly ceded Canada to Britain. The winner promptly issued the Royal Proclamation of 1763, which promised a legislative assembly and the imposition of the laws of England. Those promises did little to extend the English way of life: the courts clung to the rules of the Custom of Paris; land grants remained feudal rites.

Eleven years later, in the Quebec Act of 1774, Britain re-

versed its stand, perhaps to ensure Quebec’s loyalty if there were troubles in the U.S. colonies: it confirmed the feudal landholding system, restored French civil law and enabled Roman Catholics to hold office. Britain, in effect, recognized that Quebec was distinct.

Throughout the following century, French and English struggled to live together. In the wake of the American Revolution, thousands of British loyalists streamed over the border into British territory. Most settled in the Maritimes; many drifted into southern Ontario; some settled in Quebec. In 1791, Britain separated its New France colony into Lower Canada (Quebec) and Upper Canada (Ontario).

Each province received an elected legislature—but the nominated executive council (the cabinet) in each province did not have to heed that legislature. In 1837, unsuccessful rebellions broke out in both Upper and Lower Canada. The investigating official, Lord Durham, found “two nations warring in the bosom of a single state.”

He recommended the assimilation of the French because they were “a people with no literature and no history.” Britain promptly created a common legislature for Canada East (Quebec) and Canada West (Ontario); although Quebec was more populous, to ensure British ascendancy both provinces received equal representation. The scheme did not work. By 1851, the English outnumbered the French—but Canada East had equal representation. The Canadas functioned largely through shifting coalition governments.

The Civil War Stirred Fears In The Canadas

That instability, coupled with outside pressures, led to the birth of the nation. By the 1860s, the Canadas were in an

uproar: although Britain was officially neutral in the American Civil War, it tacitly supported the separatist South. As a result, leaders of the Canadas feared retaliation from the northern U.S. Union forces; many believed that uniting Canada was necessary for its survival. Canada East Tory leader George-Etienne Cartier agreed. But he stipulated “that the two provinces [must] coexist with equal powers

and that neither should dominate over the other in Parliament.”

In the summer of 1864, the new coalition government of the Canadas promised fundamental constitutional change to end the succession of unstable coalition governments. That vow coincided with the Atlantic provinces’ plan for tentative talks to discuss unity. The Canadas’ coalition requested permission to attend that Atlantic meeting. Taken aback, the Atlantic provinces assented. Their first encounter took place in Charlottetown; discussions continued in Quebec City. In late 1864, the Fathers concluded an agreement. On March 8,1867, the British government passed that agreement, the British North America Act, as Canada's key constitutional document. The act took effect on July 1, 1867: Nova Scotia, New Brunswick, Quebec and Ontario were now the Dominion of Canada. In 1870, Manitoba joined. A year later, British Columbia arrived. In 1873, Prince Edward Island joined. In 1905, Alberta and Saskatchewan followed.

From the beginning, Confederation created a gulf in perception between English Canada and French Canada. Appalled by the Civil War raging in the American federation, John A. Macdonald, who was to become Canada’s first prime minister, concluded that federations, in themselves, were divisive forms of government: he wanted to create a strong central government. In contrast, Cartier insisted upon strong provincial powers to protect Quebec’s language and its Roman Catholic schools. As historian Mason Wade observed: “It was Cartier who determined the initial decision that the union should take a federal rather than a legislative form. Macdonald himself favored a legislative union.”

The result was a fascinating compromise: Ottawa received pow-

ers over such weighty matters as the regulation of trade and commerce; the provinces received control over such areas as the administration of justice. At the same time, all unspecified powers resided in Ottawa. As well, the federal government could disallow or nullify provincial acts. Macdonald concluded: “We thereby strengthen the central Parliament and make Confederation one people and one government.” Cartier concluded: “Under the new system, Lower Canada will have its local government and almost as much legislative power as formerly.”

The seeds of discord were sown. Surprisingly, the first challenge to federal rights came from Oliver Mowat, Ontario’s determined premier. A participant at the Quebec Confederation conference, Mowat decided to enlarge the legislative and administrative status of his province. Alarmed at that challenge to strong central government, Macdonald set out to stop him. Their scuffles became legendary: Mowat passed legislation; Macdonald disallowed it. But there was an impediment to Macdonald’s plan: although Canada had created a Supreme Court in 1875, the judicial committee of the Privy Council in Great Britain remained the final authority for all constitutional cases under the British North America Act.

Despite Ottawa’s cajoling, the Privy Council did not automatically conclude that Ottawa possessed all powers not specifically assigned to the provinces. To Macdonald’s horror, the Privy Council began to place limits upon that so-called residuary powers clause. The provinces were gaining power—at Ottawa’s expense.

In that climate, the now-familiar refrain of Quebec’s insistence on provincial rights began. In 1887, Liberal Honoré Mercier became premier of Quebec. Provincial passions were running high: in 1885, Ottawa had hanged the francophone Louis Riel, leader of the Métis in the west, for treason. Mercier determined to promote the growth of French culture—and he identified that culture almost exclusively with the province of Quebec. As a result, he became an advocate of strong provincial rights. In 1887, Mercier and Mowat met with the premiers of New Brunswick, Nova Scotia and Manitoba.

Mercier did not ask for special powers for Quebec. Instead, he advocated more powers, and more revenue, for all provinces. The five premiers denounced Ottawa’s power of disallowance and they

demanded the right to name half of the Senate’s members. They also called for larger federal subsidies. Macdonald loftily ignored their demands. But he could not ignore the fact that their status and their power were now greater than he had ever intended.

The stage was set for the 20th-century constitutional wars.

The New Century Brought Expansion

Those now-familiar power struggles between Ottawa and the provinces, between French and English Canada, punctuated the first decades of the new century. With the outbreak of the First World War in 1914, Ottawa regained its faltering control over the nation. Plunged into crisis, it imposed corporate and personal taxes and created a War Trade Board to supervise the national economy. Peace in 1918 brought lassitude. The British Privy Council reduced Ottawa’s precious residuary power to an exceptional authority that could only be invoked in emergencies. The provinces expanded their health and welfare services; they constructed highways, promoted growth, built hydroelectric utilities. Federal expenditures declined; provincial expenditures doubled.

At the same time, Quebec nationalism was flourishing. The spark was the conscription crisis of 1917. For many Quebec residents, the Great War was Britain’s war; Canada was merely Britain’s conscript. When Prime Minister Robert Borden wrestled conscription through the House of Commons, riots broke out in Quebec. French-Canadian nationalist Henri Bourassa, the founder of the newspaper Le Devoir, opposed the war—and heatedly opposed conscription. With peace, he intensified his campaign to turn Canada into a truly Anglo-French nation: Quebec would have to fight to protect French culture against assimilation. French would have to enjoy equal status with English throughout the nation. The two cultures must become truly equal partners.

Meanwhile, Canada itself was assuming new powers. In 1931,

with the Statute of Westminster, Britain granted full legal freedom to its dominions—except in those areas where they decided to remain subordinate. At Canada’s request, the law specifically stated that Britain retained the right to amend Canada’s Constitution because Canada itself had no amending formula. All previous amendments to Canada’s Constitution, such as the admission of additional provinces, had been sanctioned in Westminster. Without an amending formula and without Westminster, there could be no future amendments.

That dilemma was at the core of the next 50 years of constitutional infighting.

In 1936, Prime Minister William Lyon Mackenzie King made the first major attempt to reform the system. At the time, depression gripped the nation; Ottawa wanted to improve social services and impose economic controls.

But the British Privy Council had weakened Sir John A. Macdonald’s cherished central government. And now the central government believed that constitutional amendments were required to preserve Canada’s place in the industrialized world. The federal and provincial participants struggled for months. They finally agreed upon a complicated four-part amending formula that required unanimous consent for adoption. New Brunswick rejected it.

King refused to give up. In August, 1937, despite the furious opposition of Alberta, Quebec and Ontario, he appointed a royal commission to examine again the economic basis of Confederation. Three years later, the inquiry into Dominion-provincial relations, the socalled Rowell-Sirois commission, recommended a shifting of taxation power to the federal government—and the creation of grants to the provinces to equalize provincial tax revenues.

That report later became the basis for many subsequent federal-provincial agreements. But, by then, the Second World War was raging. Without Rowell-Sirois, without much opposition, King had mobilized his nation for combat—and regained federal paramountcy. All

provinces signed over taxing powers, and Ottawa gained a virtual monopoly over fiscal policy. Ottawa introduced family allowances and a federal labor-relations code, and set a floor for farm prices. War demonstrated the potentially enormous range of government power—and the enormous spending clout. The provinces watched, and learned.

In Peacetime, The Tensions Deepened

At the end of the war, the domestic tug of war resumed. In 1945, Ottawa, to preserve its new powers, proposed that the

provinces surrender control over personal and corporate income tax in return for guaranteed per capita subsidies. The provinces were keenly aware that Ottawa wanted to apply the interventionist theories of such economists as Britain’s John Maynard Keynes in order to influence the pace of economic development. Skeptical and conservative, unwilling to subject themselves to new theories, they refused to settle for a permanent loss of power and rejected the proposal. Instead, Ottawa negotiated less ambitious tax agreements with seven of the nine provinces in 1947. (Newfoundland did not join Confederation until 1949.) Despite rancor and dissent, those agreements were renewed every five years. Meanwhile, by the late 1950s, most health and welfare policies were jointly funded.

With peace, constitutional warfare resumed. In 1949, Westminster approved Ottawa’s request to make limited amendments affecting federal power. In that same year, Ottawa abolished appeals to Britain’s Privy Council: the Supreme Court of Canada became the court of last resort. In 1950, a federal-provincial conference tried, once again, to discover an acceptable amending formula. But again, it failed: Quebec declared that the Constitution was sacrosanct and it could not be touched.

A decade later, in June, 1960, Liberal Jean Lesage won the Quebec election—and the current phase of the long-running constitutional battle began. Many historians now contend that Lesage’s

election heralded the start of the Quiet Revolution, Quebec’s delayed entry into the modem world. An ardent nationalist, Lesage wanted to use the Quebec “state” to defend francophone rights and to promote francophone interests. He shook off centuries of domination by the Roman Catholic Church; he peered beyond Quebec’s borders, noting the judicial and financial limitations of Confederation. Government ministers spoke openly about the need to be “masters in our own house” and demanded new talks to bring home the Constitution with an amending formula.

The sharpest clash with Ottawa took place in 1964. At a stormy federal-provincial meeting, Lesage forced the federal government to accept Quebec’s withdrawal from several federal-provincial costsharing programs, such as hospital insurance, and to offer compensation to Quebec. As a result, Ottawa gave Quebec 44 per cent of the personal income tax collected within the province—while the other provinces received only 20 per cent. Quebec also launched a fully funded provincial pension plan. That bold social move forced Ottawa and the other provinces to start the Canada Pension Plan. In that same year, Ottawa and the provinces finally endorsed a complicated constitutional amending formula, the so-called Fulton-Favreau formula. But the constitutional breakthrough was short-lived. When Lesage’s rival, Union Nationale Leader Daniel Johnson, indignantly insisted that the formula would prevent the acquisition of major new powers, Lesage rescinded his endorsement in 1965.

Despite the constitutional failure, the times were right for Quebec: the Quiet Revolution was heard. In 1963, Prime Minister Lester Pearson also appointed a royal commission on bilingualism

and biculturalism, which eventually issued a landmark six-volume report. Meanwhile, Pearson extended the use of French alongside English in the federal government and its services. In 1965, a new guard of Quebec Liberals, including Pierre Trudeau, won election as federal MPs. Three years later, Trudeau was Prime Minister, determined to meet Quebec’s needs within Canada, determined to form a truly bilingual government.

Despite Trudeau’s federalist aspirations, the pressure in Quebec for separation, and a separate identity, continued to grow. In 1970, the separatist Front de libération du Québec kidnapped a senior British trade official and murdered a senior Quebec cabinet minister. In response, Trudeau evoked the War Measures Act, flexing wartime powers in peacetime, suspending civil rights and calling the army into the streets of Ottawa and Montreal. That action was widely applauded across English Canada. A year later, Trudeau convened another constitutional conference in Victoria, which came breathtakingly close to success. Ottawa and the premiers agreed on an amending formula and undertook to hold an early meeting to discuss all aspects of federal-provincial fiscal arrangements. The nation was elated; the Constitution was finally coming home. Seven days later, after a storm of provincial protest, Quebec Premier Robert Bourassa rejected the agreement because Ottawa and the provinces did not endorse Quebec’s request for “legislative primacy” in the field of social policies. Trudeau could please English Canada, but he could not, and would not, satisfy Quebec.

The country’s hopes were dashed. Another decade of constitutional soul-searching began.

‘Special Status’ Is a Quebec Rallying Cry

The 1970s marked the blossoming of an unusual relationship: provinces that wanted to increase their own power made common cause with Quebec as it pushed for more power to preserve its distinct identity. That alliance had formed on occasion before, but its strength in the 1970s was remarkable. The common front endured until a dramatic late-evening meeting in November, 1981. But its existence throughout the 1970s marked, and thwarted, all federal-provincial meetings designed to bring home the British North America Act.

The battle began with jousting between Ottawa and Quebec. In 1973, when Quebec’s Bourassa won re-election, he called for more constitutional talks. In 1974, after a majority election victory, Trudeau agreed, noting that Canada had “so totally failed in this kindergarten, fundamental structure of political independence, I believe it is time we got into Grade 1.” That same year, the Quebec government passed Bill 22, which earmarked French as the language of the workplace. Trudeau recommended that the Constitution be brought home—and that the provincial First Ministers adopt the 1971 amending process, the so-called Victoria formula. Bourassa pointedly reminded him that Quebec wanted agreement on a new division of powers before the Constitution came home.

The battle of perceptions heightened in 1975. In January, Bourassa wrote, “Quebec has set itself the ambition of being and remaining a French state within the Canadian common market.” Trudeau replied, “At one time, there was talk of Quebec having a special status but, fortunately, that is a dead issue.” Said Bourassa: “I won’t make Quebec’s cultural future dependent upon a majority in Ottawa which is not ours.” Mere months after those inflammatory statements, Trudeau again proposed patriation with an amending formula. Bourassa again objected. He wanted clauses to allow Quebec to protect its culture and control immigration and communications. Other premiers sought amendments to change the Senate and to address regional inequalities. In October, Ottawa forged an agreement, not a constitutional deal, with Quebec: federal decisions on Quebec-bound immigrants would reflect provincial needs.

The next round of constitutional battles simply strengthened the determination of Quebec and the other provinces to increase their powers. At the time, Ottawa bureaucrats were drafting a constitutional preamble and a constitutional guarantee for Quebec culture. But Trudeau had run out of patience. In March, 1976, he threatened to unilaterally bring home the Constitution—and worry about the division of powers later. The majority of premiers vehemently objected. Trudeau offered three alternatives: simple patriation; patriation with the Victoria amending formula (the formula would only come into effect when all the provinces agreed); patriation with the formula and the guarantee to protect the French language and culture (it, too, would only take effect with unanimity). In October, the 10 premiers issued their response: patriation should not occur until Ottawa and the provinces agreed to expand the provinces’ role in such areas as communications and spending power. Trudeau called for further talks at a federal-provincial conference in December, 1976. But a Parti Québécois premier, René Lévesque, was now in power, and the issue slipped down the agenda.

Lévesque’s election threw the rest of the nation into a frenzy. The premier had promised a referendum on Quebec’s future, and the province and the country agonized about the wording of the question to be asked, the financing of the battle, the legitimacy of the

participants. In August, 1977, Quebec passed Bill 101, which declared that French was the official language of the province, the legislature, the courts, work, labor relations and business.

The stage was set for another constitutional showdown. In June, 1978, Ottawa tabled an act to amend the Constitution: its preamble included a charter of rights that outlined the democratic and fundamental freedoms of all Canadians. As well, it proposed to entrench regional representation on the Supreme Court of Canada.

It also called for replacing the Senate with a House of the Federation, with provincial legislatures selecting half the members of that new upper house. Ottawa declared that it could adopt most provisions of that act unilaterally because they only affected the federal government. (The Supreme Court later disagreed with that assertion.) Most provincial leaders were appalled. While a parliamentary committee considered the bill, a federal-provincial summit in the autumn of 1978 foundered: every province argued about the distribution of almost every power. In desperation, Trudeau offered to consider changes to seven major federal areas, including spending powers. The conference still failed. Lévesque declared that Ottawa’s proposals fell “far short” of being acceptable. Alberta Premier Peter Lougheed argued for “an overall shift of responsibility to the governments that can do the best for the people.”

Political events swamped those Byzantine discussions. In 1979, after campaigning for a strong central government, Trudeau lost power, defeated by Joe Clark’s Conservatives. Nine months later, he was back with a

majority. Three months after that, during the Quebec referendum campaign, he promised that he and his fellow Quebec MPs would stake their seats on a vow that if Quebec rejected sovereigntyassociation, he would renew the Constitution. Quebec agreed: on May 20,1980, the PQ lost the referendum by a 20-point margin. And the country headed into another constitutional battle—one that rould have a far more significant outcome.

Trudeau Takes Charge Of Events

The next 18 months were a wild roller-coaster ride through every competing constitutional vision of Canada. Premiers were pitted against premiers. In the end, Pierre Trudeau finally bested his longtime rival René Lévesque. Through an uneasy and often unsatisfactory compromise, the Constitution came home. Quebec did not.

The drama began shortly after the 1980 referendum. Restored to power, anxious to keep his vow, Trudeau decided to do it his way. In June, the Prime Minister repudiated his previous constitutional offers. Instead, he demanded new centralizing powers over the economy. He also demanded, as a so-called people’s package, patriation with a charter of rights. Three months later, at a federalprovincial conference, the premiers indignantly stated their disparate, and often opposing, views of Canada. The conference failed.

Trudeau forged ahead. In the fall of 1980, he presented a parliamentary resolution to patriate the Constitution, unilaterally by the federal government, with the Victoria amending formula and a charter of rights. Only two provinces, Ontario and New Brunswick, supported Ottawa. The remaining eight provinces, nicknamed the Gang of Eight, challenged the resolution in the courts. The Manitoba

Court of Appeal and the Quebec Superior Court of Appeal ruled in Ottawa’s favor; the Supreme Court of Newfoundland ruled against the federal government. As the case headed to the Supreme Court of Canada, the eight dissidents, including Quebec, signed their own remarkable accord. They demanded simple patriation with a different amending formula: theirs. The dissidents’ proposed amending formula, the so-called Vancouver formula, did not contain a specific veto over constitutional change for Quebec, although Quebec had

always assumed that it possessed an implicit veto. On Sept. 28, the Supreme Court of Canada handed down a Solomon-like judgment: Ottawa had the legal right to unilaterally patriate the Constitution; but it added that unwritten constitutional convention, or custom, required Ottawa to obtain an unspecified “consensus” among the provinces before it proceeded.

A last-ditch conference began in early November, 1980. Some members of the Gang of Eight, including Quebec and Manitoba, insisted on simple patriation with the Vancouver amending formula—nothing more. For two days, the participants squabbled. Then, Trudeau launched a machiavellian power play. On the morning of the third day, he casually mentioned the possibility of a referendum on the charter. Lévesque snapped at the bait as an “honorable solution.” Trudeau promptly produced a referendum proposal permitting patriation prior to a referendum. Its other terms stipulated that the charter would not take effect for two years; if the premiers could not agree upon a charter, the people would decide in a referendum; the charter would only take effect if a majority of Canadians in each of the regions endorsed it. Lévesque agreed. His fellow premiers were horrified: no politician wants to campaign against a charter of rights. Said Trudeau, with an enigmatic smile: “The cat is among the pigeons.”

That afternoon, Trudeau claimed that he could not amend the patriation resolution with the charter and the amending formula because the opposition would block it in Parliament. Instead, he suggested that Ottawa and the premiers should adopt a second resolution to hold the referendum. Because of the amending formula in the basic patriation package, that second referendum proposal would require unanimous federal and provincial approval. Angered, Lévesque backed away from the recommendation: he knew that all provinces and Ottawa would never agree to a referendum on the charter. But the mere prospect of a referendum had terrified Lévesque’s former allies.

That night, as Lévesque slept, the nine provinces and Ottawa

patched together a deal without Quebec’s knowledge. Canada would patriate its Constitution with the Vancouver amending formula and the charter of rights. The charter would contain an ultimately fateful “notwithstanding clause,” which would permit provinces to pass legislation in violation of the charter’s guarantees of fundamental freedoms, legal rights and equality rights. A shattered Lévesque learned about the deal at breakfast with his former allies. Quebec had surrendered its once-implicit veto, because the Vancouver formula was now the amending formula—and it had still lost. Now, he said,

“Quebec finds itself all alone.”

The Twisted Road To The Meech Lake Crisis

□ For the remainder of the Parti Québécois term, there were only desultory attempts at constitutional change. Legally, there was no difficulty: the provisions of the Constitution Act of 1982 applied to Quebec. There was a political dilemma: Quebec simply refused to endorse an act that it had not signed. In 1982, Trudeau established a parliamentary committee on Senate reform, which eventually called for an elected Senate. But the Parti Québécois government declared that the province would not endorse Senate reform until the Constitution was amended in a manner that it could endorse.

In an attempt to gain Quebec’s support, Trudeau suggested that

Ottawa and the provinces would restore its veto. Many provinces objected. As a counterproposal, Quebec pressed for the right to opt out of future constitutional changes with full compensation. Ottawa refused. After 1982, the Parti Québécois government routinely invoked the notwithstanding clause—and excluded all Quebec legislation from the provisions of the charter of rights. Then, in September, 1984, the federal Conservatives, led by Brian Mulroney, defeated the Liberals. The situation in Quebec still simmered: a settlement still appeared impossible.

That situation changed dramatically on Dec. 2,1985: the Quebec Liberals defeated the Parti Québécois. In 1986, the province presented its five conditions for acceptance of the Constitution Act of 1982: recognition of Quebec as a distinct society; a greater provincial role in immigration; a provincial role in appointments to the Supreme Cotuft of Canada; limitations upon federal spending power; a veto for Quebec on constitutional amendments. For months, Ottawa and the 10 provinces negotiated behind the scenes, struggling for compromise, until on April 30, 1987, a triumphant but exhausted Mulroney announced that the 11 governments had reached an agreement in principle based on Bourassa’s demands.

In retrospect, in the light of Canada’s constitutional history, the shape of the Meech Lake accord should not have been a surprise. Quebec gained recognition as a “distinct society” with the right “to preserve and to promote” its identity; such federal-provincial immigration agreements as the 1975 Quebec-Ottawa accord were enshrined as constitutional doctrine; Ottawa agreed to select senators and Supreme Court justices from provincial lists, and all provinces received a veto over constitutional changes. The provinces also gained the right to opt out of shared-cost programs in areas of

exclusive provincial jurisdiction and, if they established their own program compatible with the national objectives, they would receive federal compensation. Finally, Ottawa agreed to hold annual First Ministers’ conferences on the economy and the Constitution.

The accord, so promising in its inception, began to unravel within months. Constitutional scholars now disagree on whether all sectors of the accord require unanimous approval and whether the threeyear deadline of June 23,1990, applies to all clauses. That is almost irrelevant. The Meech Lake accord is a symbolic package, a symbolic step away from Sir John A. Macdonald’s vision of the nation. That symbolism was not lost upon many premiers. In October, 1987, Frank McKenna, who had called for improvements to the accord, replaced Richard Hatfield as premier of New Brunswick. In December, 1988, Bourassa invoked the Constitution’s notwithstanding clause to protect legislation restricting the use of English on signs. A day later, Manitoba’s new premier, Conservative Gary Filmon, withdrew his support for Meech. In April, 1989, Liberal Clyde Wells defeated the Conservatives in Newfoundland. An adamant opponent of the accord, he led his legislature earlier this year in rescinding approval.

The stage was set for a decisive debate. For more than a century, Ottawa and the provinces had fought. For more than a century, Quebec had struggled to define its place within Canada. Now the time had come to define Canada for the 21st century.

MARY JANIGAN