It is a fascinating vision of Canada in the 21st century. Aboriginals govern themselves. Quebec proudly preserves and promotes its distinct society. A powerful federal-provincial Council of the Federation resolves disputes between the formerly feuding levels of government. Budget policies across the nation are synchronized. Ottawa seeks consensus before it initiates any new Canada-wide social programs. On Parliament Hill, a Senate designed in 1867 to protect the interests of wealthy property owners has been transformed into an elected voice for provincial concerns. In the House of Commons, government MPs are more willing—and able—to oppose their own party’s legislation when it clashes with their constituents’ interests.
Those dramatic proposals are central to Ottawa’s new, far-reaching package of constitutional reform. After five months of delicate
behind-the-scenes negotiations, the federal government last week unveiled a 59-page package that offered something to almost every group and every region in Canada. There are proposals to expand the Canadian Charter of Rights and Freedoms, to invigorate federal institutions and to grant new rights to aboriginals and Quebec. Ottawa would assume a greater role in the direction of the economy— but it could only act with the approval of the provinces. Observed University of Toronto political scientist Richard Simeon: “The vision is one of balance. The vision is that we live in a country that is divided in many ways—and our Constitution must reach out to all those different groups.”
That vision stands in stark contrast to the Conservative government’s previous effort to amend the Constitution. The Meech Lake constitutional accord died in June, 1990, after
three years of acrimonious and divisive debate. During high-pressure secretive conferences, 10 provincial premiers and Prime Minister Brian Mulroney devised that limited six-point accord to satisfy Quebec’s demands for greater powers—and then insisted that it could not be changed. Last week, both the approach and the content were different. The proposal pointedly proclaimed: “This is Canada’s round.” As well, Mulroney repeatedly stressed that every proposal is open to discussion—and change. As a senior federal official told Maclean’s. “It is a vision of economic integration on the one hand and more space for identities on the other.” Some key elements:
THE DISTINCT SOCIETY CLAUSE
The recognition of Quebec’s right to preserve and promote its “distinct society” aroused intense emotions during the Meech Lake de-
bate. Some experts contended that the clause would take precedence over such Charter rights as the equality of male and female persons. Others warned that Quebec could use the clause to wrest new powers from Ottawa.
To reassure those critics, the new proposal places the distinct society provision in the Charter of Rights and Freedoms—where it could not have any effect on the division of powers. The clause stipulates that the Charter must be interpreted to take account of “the preservation and promotion of Quebec as a distinct society within Canada.” Because the new distinct society reference is in a so-called interpretative clause, it is subordinate to the Charter’s flat assertion that men and women are equal. Still, the new clause could likely curtail such Charter rights as freedom of expression to permit Quebec’s limit on the use of English on commercial signs. The new version also provides a partial definition of distinct society, noting that it “includes” a Frenchspeaking majority, a unique culture and a civillaw tradition. Said University of Toronto law professor Katherine Swinton, who helped to draft the proposals: "The rationale is to give solace to Quebec’s English-language minority and to some who opposed it the last time on the grounds that it was too open-ended.”
Three dramatic and highly controversial proposals are designed to modernize Canada’s economy in an increasingly competitive world. For one thing, after decades of provincial delay, Ottawa says that it wants to lift the barriers that impede trade and business dealings across provincial borders. The Constitution Act, 1867, has prevented provinces from imposing tariffs on goods from other provinces. To circumvent that, the provinces have employed non-tariff barriers to prevent the free flow of such products as beer. The new proposal states that Canada is an economic union “within which persons, goods, services and capital may move freely without barriers or restrictions based on provincial or territorial boundaries.” Federal equalization or regional development programs would be exempt. Exemptions would also be granted to federal or provincial laws that Ottawa deemed to be “in the national interest.”
The second proposal would give exclusive power to Parliament to pass laws “in relation to any matter that it declares to be for the efficient functioning of the economic union.” Those laws would require the approval of seven provinces with at least 50 per cent of the population. Dissenting provinces could refuse to implement new rules if 60 per cent of their legislators voted to “opt out” for a period of up to three years.
That unusual proposal immediately sparked heated debate. Some critics contend that Ottawa is taking power from the provinces under the guise of strengthening the economic union. Charged Thomas Courchene, director of the School of Policy Studies at Queen’s University: “It allows Ottawa to emasculate anything that moves in Quebec. In the name of efficiency,
Ottawa could nationalize the Montreal stock exchange. Quebec might be forced to opt out— while the rest of Canada dumps on it—to maintain institutions that have been part of its entrepreneurial revolution for the last 20 years.” University of Alberta economics professor Kenneth Norrie countered that the new federal power is not as mighty as it first appears. Said Norrie: “It is a federal power, but it is a federal power that four provinces can kill.” Ottawa also wants to develop guidelines with the provinces to harmonize their fiscal and spending policies with its monetary policy. Finance ministers would co-ordinate budget
plans—and monitor the economy with the aid of a new, independent agency. The Bank of Canada would receive a highly unusual specific constitutional mandate to fight inflation.
That approach—benign and efficient on the surface—carries serious political and economic implications. For one thing, it would restrict the bank’s ability to remedy other economic problems such as unemployment. In the past, central banks have increased the money supply in an attempt to lower interest rates and to stimulate the economy. That move often fuelled inflation. The new proposal would likely prevent that approach: any increase in inflation would violate the bank’s constitutional man-
date. Said Courchene: “The notion that the Bank of Canada mandate would be to maintain price stability is absurd. That is policy. You should never have policy in the Constitution.” Other critics point out that Ottawa is not in any position to set an example for the provinces when it is running an annual budget deficit of at least $30 billion—and has accumulated a debt of more than $400 billion.
THE SENATE AND THE COUNCIL OF THE FEDERATION
The proposal acknowledges that “Canada’s political institutions must be revitalized.” As a result, it recommends the overhaul of Canada’s upper house and the creation of a new executive body, a Council of the Federation (page 30). The federal government now appoints the members of the 104-seat Senate according to an antiquated formula that, in one anomaly, gives four seats to tiny Prince Edward Island and just six to British Columbia, which has approximately 25 times the population. In its place, the proposal calls for an elected Senate with “much more equitable” provincial and territorial representation. Federal officials told Maclean ’s that Ottawa stopped short of calling for equal representation from each province because it did not want to spark a furious crossCanada debate. The new Senate could defeat most Commons legislation—but it could only delay “matters of particular national importance,” such as defence, for six months. Bills affecting language and culture would require the approval of a so-called double majority— the approval of both francophone and anglophone senators.
The new Council of the Federation, in turn, would formalize the practice of federal-provincial meetings—and give constitutional force to their agreements. The council would have to approve any new national shared-cost programs in areas of provincial jurisdiction, such as health and education. As well, Ottawa could not use its new powers to strengthen the economic union without the council’s approval.
The two proposals will likely cause a major debate. Some experts contend that the creation of the council formalizes executive federalism— I an already-unpopular method of government z under which national policy is set by a select and I often secretive group of cabinet ministers or u first ministers. They say that instead, the elected Senate should represent provincial interests. Others counter that provincial governments should be partners in devising policies that they are asked to fund and to implement.
The proposal recognizes the aboriginal right to self-government—although the implementation of that right may require up to 10 years. There is no legal definition of self-government, but it would likely include control over health, education and justice—subject to the Charter. The proposal calls for Ottawa, the provinces and the territories to negotiate with native groups to establish self-government agreements. If, after 10 years, there is no agreement, natives would still gain the right to self-
government—and it would be left to the courts to define the concept. Said University of Toronto law professor Patrick Macklem: “It might give some bargaining power to aboriginals, knowing they will have an enforceable right within 10 years. In the past, they have come to the table with no bargaining power.”
CHARTER OF RIGHTS
The proposal would add a guarantee of property rights to the Charter. Its proponents say that it would ensure that any public expropriation of private property would require governments to show that the action is necessary, and to pay a reasonable price. But the clause may lead to conflicts among different sets of values. For one thing, the courts might be asked to decide if a landlord has the right to reject a handicapped tenant; that is, whether the right to property takes precedence over equality rights.
The proposal would also make it more difficult to invoke the notwithstanding clause, which allows the federal or provincial governments to override key rights with a simple majority vote. Under the new proposal, the approval of 60 per cent of a legislature's members would be required to use the clause. As well, the override would last for only three years—instead of the current five—before it would have to be renewed.
It is a general statement of who Canadians “are as a people and who we aspire to be.” The proposal lists 14 aspects of Canada’s character. Those include the equality of men and women and a general “commitment to the well-being of all Canadians.” Senior federal officials said that the clause could be expanded later to meet Ontario’s demand for a social charter that would protect such programs as medicare and welfare.
DIVISION OF POWERS Last spring, the Quebec Liberal party’s Allaire Report called for exclusive provincial jurisdiction over 22 areas, including language and culture. Ottawa largely ignored those demands. Instead, it offered to transfer manpow-
er training to the provinces and to negotiate constitutional agreements in the areas of culture and immigration with individual provinces. As well, it offered to recognize the provinces’ exclusive jurisdiction over six areas, including tourism. Another proposal
would allow Ottawa and any province to delegate powers to each other. -Those major proposals represent only a beginning. Each will be weighed carefully to evaluate its political and legal consequences.
Constitutional renewal now revolves on the responses to Ottawa’s new approach to old but explosive problems.
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