CANADA

A problem of definition

Is Canada just the sum of unpoetic parts?

MARY JANIGAN October 28 1991
CANADA

A problem of definition

Is Canada just the sum of unpoetic parts?

MARY JANIGAN October 28 1991

A problem of definition

Is Canada just the sum of unpoetic parts?

In theory, it should be a glorious declaration of the identity and aspirations of the nation. In reality, the proposed “Canada clause” in Ottawa’s new constitutional package has prompted many Canadians to wonder whether constitution-makers should ever be allowed to define them. Far from presenting a ringing declaration of Canada, Ottawa delivered a dry 14-point checklist in the proposals that it unveiled last month. Men and women, the proposal asserts, are equal. Governments must preserve the linguistic balance in Quebec and Canada as a whole—although Quebec has a special responsibility to preserve and promote its distinct society. The federation’s identity “encompasses the characteristics of each province, territory and community.” Tolerance is important. After 124 years of often turbulent and occasionally triumphant history, Canadians might wonder if their nation was simply the sum of those unpoetic parts.

The clause is, in fact, a strong illustration of the problems that plague modern constitutionmakers—and the nation. As a 30-member joint House of Commons and Senate committee receives the responses of Canadians to the 59page constitutional package in cross-country hearings, the Canada clause is coming under scrutiny for what it includes—and for what it leaves out. Federal officials told Maclean ’s that the clause became part of the package for both idealistic and political reasons. Those officials believed that an inspiring preamble—a Canada clause—would gratify many Canadians because the Constitution would then reflect their identities and their dreams. But those officials also calculated that an affirmation of Canadian characteristics and values would mollify Canadians who resented the recognition of Quebec as a distinct society. If other Canadians could recognize themselves in the Constitution, officials reasoned, they would not resent Quebec’s recognition.

But the constitution-makers hit a familiar Canadian wall: although they could agree on the components of the nation, they had difficulty devising a definition of the whole that would appeal to all provinces and to all groups. The result, charge some critics, is a clause that is a leaden list of the demands of the various constitutional interest groups. Said political scientist Robert Young, of the University of Western Ontario in London: “We are committed to well-being and to sustainable development. But apart from being rich and being environmentally correct, we are not committed to anything. The clause is simply a flat description of what we are in 1991.”

That definition of Canada could change. Ottawa’s proposal simply lists points for inclusion in a preamble: it does not present those points in a legal text. As a result, the joint committee could suggest major changes to the clause when it reports to Parliament by Feb. 28. Some experts recommend scrapping the clause outright because, they say, it accents the nation’s diversity—and has therefore become an inadvertent and irritating symbol of Canada’s divisions. Other experts—including senior federal officials—suggest that the clause could be expanded in response to Ontario’s demand for a social charter that would protect such programs as medicare and welfare.

Still others argue that the Canada clause— although not in its current form—could fulfil a national need. Said University of Calgary political scientist Roger Gibbins: “There is a need for people to see their own reflection in the Constitution—to have an opening to the Constitution—that can convey what Canada means to them and to their children. The current proposal is really a checklist. It will be difficult—but we should try to come up with a poetic statement that people will look at and say, ‘Yes, that is my Canada.’ ”

That yearning for an inspirational definition of Canada arose during the stormy debate over the failed Meech Lake constitutional accord. Prime Minister Brian Mulroney and 10 provincial premiers unveiled that six-point package of constitutional amendments in 1987 after closed-door, high-pressure meetings. The accord was designed to win Quebec’s acceptance of the Constitution Act, 1982, which included a Canadian Charter of Rights and Freedoms. Many French-speaking Quebecers applauded the Meech Lake provisions, especially the recognition of Quebec as a “distinct society.” But many English-speaking Canadians vehemently maintained that Ottawa was transferring too much power to the provinces, especially to Quebec. Observed Michael Adams, president of Toronto-based Environics Research Group Ltd.: “In the wake of Meech Lake, there has been an increase in English Canada of the proportion of Canadians who favor the status quo—from 37 to 46 per cent. Meech Lake was seen as giving special status to Quebec. In response, English-Canadians are asserting their strong egalitarian values—both in terms of provinces and in terms of individuals.”

The proposed Canada clause illustrates the difficulty of translating those differing national visions—in Quebec and in the rest of Canada— into constitutional prose. Quebec has demanded recognition as a distinct society—and a constitutional veto over changes to key institutions. Many English-Canadians, in turn, have demanded constitutional recognition of the principle that all provinces are equal. The two visions cannot exist side by side in a preamble. The University of Calgary’s Gibbons, for one, points out that a clear assertion of the equality of the provinces might interfere with attempts to reform the Senate or the constitutional amending formula. Provinces could invoke that

principle, he says, to insist that each one must receive an equal number of seats in a reformed Senate—although the current federal proposal merely suggests an “equitable” division. As well, it might be impossible to grant a special veto over institutional change to Quebec: other provinces could argue, for example, that they, too, were entitled to an equal veto.

Those arguments distress many preamble proponents who contend that the proposed Canada clause simply ignores their vision of the nation to avoid confrontation with competing visions. Bryan Schwartz, for one, a law professor at the University of Manitoba in Winnipeg, maintains that the proposal’s wording is tepid and often misleading: it refers to the well-being of Canadians, for one, while the package as a whole sets further limits on Ottawa’s ability to initiate Canada-wide social programs. More important, he says, the Canada clause has

Still, the inclusion of such stirring phrases could have unforeseen constitutional effects. At first glance, the proposed Canada clause appears relatively powerless. It would not confer a direct right or responsibility on any government. It would not stipulate that the Constitution must be interpreted in light of its 14 points. Instead, Ottawa has described the clause as a simple reflection of Canada’s characteristics and values. But every word in a constitution has meaning. During the 1930s and the 1950s, for example, the Supreme

stopped short of any ringing declaration of nationhood. “There is talk about the communities that form part of Canada, but there is absolutely no commitment to the fact that there is a larger national community in which everyone participates,” said Schwartz. “This is what people have said that they wanted about Canada: we are Canadians first and then we are everything else.” Court of Canada occasionally cited an obscure phrase in the preamble to Canada’s written constitution, the British North America Act, 1867, to uphold freedom of the press and free speech in Alberta and Quebec. The preamble states that the Canadian Constitution is “similar in principle to that of the United Kingdom.” The judges reasoned that the clause referred to a parliamentary democracy depending on an informed electorate, which, in turn, depended on a free press and free speech. Observed John Whyte, dean of law at Queen’s University in Kingston, Ont.: “Where there is a real paucity of direction in the Constitution, the courts will go anywhere to find a source for what they want to say. In the future, the courts

could find some value in the Canada clause that they could then use to develop a new interpretation.” As an example, he cites the clause’s recognition that the aboriginal peoples were “historically self-governing”—something that the courts could use to expand the definition of aboriginal rights to include self-government.

Other experts suggest that the proposed clause could expand Quebec’s right to preserve and promote its distinct society. Under the current proposals, the controversial distinct society clause would be located in the charter of rights—and could only affect the interpretation of charter rights. But the Canada clause also refers to Quebec’s responsibility to preserve and promote its distinct society. Said Thomas Courchene, director of the School of Policy Studies at Queen’s University: “The distinct society is, in essence, an economic issue: Quebec should have enough freedom so that Quebecers .can earn a North American living standard while operating in French. The distinct society provision cannot do that if it is restricted to the charter. But if it is in the preamble, it could give the distinct society more power. In a grey area, the courts could view the division of powers in the light of this Canada clause provision.”

Despite that potential for unexpected repercussions, the Canada clause is a relatively powerless constitutional tool. As a result, Ontario officials have not welcomed Ottawa’s suggestion that the clause could be expanded to respond to the province’s demand for a social charter. The proposed preamble merely states characteristics and values: it does not impose direct obligations upon governments. Officials in Ontario’s

New Democratic Party government have carefully stipulated that the courts should not have the power to enforce all aspects of the social charter. But Ontario has also suggested that the courts could use the charter to protect key elements of social programs: the courts could ensure, for one, that all Canadians have access to social programs in all provinces. It is not likely that the courts would have that power if the social charter were merely tucked into the preamble. Said David Cameron, the province’s deputy minister of intergovernmental affairs: “You could expand the Canada clause to talk about the shared values that Canadians have in the social policy field. But I just do not see that an expanded Canada clause—that is, a preamble— would do the trick by itself or have the power.”

Such problems have left the parliamentary committee with a difficult—and perhaps impossible—task. As a result, many experts are skepti-

cal about the fate of the Canada clause. Observed University of Toronto political scientist Richard Simeon: “Rather than summarizing all of the things that we have in common, it lists our diversities. I do not know how you weave that into something more elegant.” Some experts express the belief that the task is impossible. Queen’s University’s Whyte adamantly declared: “It should be dumped. It is not the clause for the time. We do have a fractured sense of ourselves today—and the Canada clause is not a counterbalance.” Others are more hopeful. Suggested the University of Western Ontario’s Young: “You could have a contest to see who could write the best Canada clause. We must have better writers somewhere in the country.” If nothing else, the contest would bring home to Canadians the difficulty of summarizing their divided nation.

MARY JANIGAN