For Saskatchewan’s new premier, last week’s victory at the polls will lead to familiar ground. Ten years ago this month, Roy Romanow was Saskatchewan’s attorney general and minister of intergovernmental affairs. He was also one of three politicians—along with then-federal Justice Minister Jean Chrétien and Ontario’s attorney general at the time, Roy McMurtry—who met in a small kitchen in the Ottawa Conference Centre and devised a constitutional deal that nine out of 10 provinces agreed to sign. Only Quebec refused, leaving a legacy of bitterness among that province’s political elite, much of it directed at Romanow and Chrétien. Now, Romanow, as well as fellow New Democrat premiers Bob Rae of Ontario and British Columbia’s newly elected Michael Harcourt, will have a crucial role to play as Canada tries to repair the rift that began with that now-famous “kitchen accord.” And for Romanow, at least, that task clearly carries the opportunity to complete unfinished business. Said the premier-designate after his victory last week: “No one likes to see a constitutional deal made with any province left out, especially Quebec.” Those remarks were intended to be conciliatory. But they may have missed their mark for at least one hard-line Quebec nationalist: author and former Parti Québécois minister Claude Morin accused Romanow of having “betrayed” Quebec in 1981. That reaction was one indication that the addition of two New Democrats to the first ministers’ table will sharply alter the atmosphere of discussions there. For one thing, the three NDP premiers lead provinces that, taken together, represent 52 per cent of the nation’s population. If they act in concert, they have the power under the existing Constitution to effectively block any proposed reforms—changes require the support of at least seven provinces with at least 50 per cent of the population.
Voters: As well, both of the new NDP premiers-designate have made it clear that they will allow voters a strong role in determining their constitutional position. For his part, Harcourt declared his intent to allow British Columbians to consider any proposed constitutional reforms in a constituent assembly—and to approve or reject them in a provincewide referendum. Romanow, meanwhile, said that he would approach the renewed constitutional debate “with an open mind,” but cautioned that the farm crisis in his province had a higher priority for his incoming NDP government.
And the two western NDP leaders are plainly not going to be alone in placing their provincial
priorities first in constitutional negotiations. Ontario’s Rae, premier since September, 1990, has also made it clear that he plans to defend his province’s interests, if necessary casting aside Ontario’s traditional role as a mediator among the other provinces.
Still, in the weeks ahead, Harcourt, Romanow and Rae will agree on some issues and be at odds on others. Ironically, one initiative that already seems unlikely to win their united support is Rae’s suggestion that a so-called social charter be included in the Constitution. According to the Ontario premier, such a charter would guarantee Canadians’ right to such social benefits as adequate housing, education and health care. Harcourt and Romanow— while both stressing the importance of social programs—have expressed doubts about whether such a guarantee belongs in the Constitution. By contrast, all three NDP leaders have expressed concerns about federal proposals to entrench new measures in the Constitution aimed at reinforcing the Canadian economic union. They also agree on the need for aboriginal self-government.
Quebec: Less clear is whether the trio can reach a common position on the way to recognize Quebec as a distinct society. That recognition is a touchstone issue in Quebec, where most commentators insist that it must be included in a new Constitution without condition. Ontario’s Rae has supported an unqualified distinct society clause ever since it formed a crucial element of the Meech Lake accord. Both of his new NDP colleagues, however, are less supportive. Harcourt, after his election, acknowledged that Quebec is “a distinct society in terms of its language, culture and Napoleonic [legal] Code”—echoing the phrasing in the latest federal formula for reform. But Harcourt has also said that he opposes any wording that might confer special status on Quebec. Romanow, meanwhile, has criticized Ottawa for proposing to place the clause in the body of the Constitution instead of the preamble—where its legal impact would be smaller.
Clearly, though, the New Democrat leaders are most wary of the economic changes proposed in the federal government’s plan. One federal proposal would limit the Bank of Canada’s role in managing the economy to fighting inflation, leaving it without a specific mandate to address the NDP’s priority of reducing unemployment. A more sweeping change would throw the full weight of the Constitution behind the federal Conservatives’ declared goal of striking down all barriers to the free movement of goods, services, people and capital among
the provinces. That, Romanow has objected, could severely restrict an NDP provincial government’s ability to use subsidies to encourage industries to locate within its borders. Harcourt plainly agrees, asserting: “I definitely want to see the lessening of trade barriers between provinces, but I also want to make sure that it’s a level playing field. A lot of provinces talk it, but don’t practise it.” For his part, Rae has expressed support for the goal of a more open economic union—but not if it drives provinces to compete ruthlessly with one another for investment. According to Rae, the federal formula could tempt some provinces to cut spending on social programs in order to be able to reduce taxes and attract additional investment.
It is just that risk, Rae argues, that makes a social charter embedded in the Canadian Constitution necessary. Without such a constitu-
tional obligation on governments to maintain social programs, the Ontario premier said during an appearance in Ottawa in October, “We will become a meaner and less civilized country.” Rae’s proposal would enshrine Canadians’ right to receive adequate health care, education, housing, income security, a clean environment and the basic necessities of life. Public support for such a charter is high: a Toronto Star/CTV poll in October found that 85 per cent of respondents polled nationally ap-
proved of the concept of a social charter.
But other politicians and legal experts are markedly less enthusiastic. For one thing, they note, the current constitutional agenda is already crowded enough without the addition of complex new considerations like a social charter. Confided one senior Ontario bureaucrat to Maclean’s “On a procedural level, people are saying, ‘Why is Ontario complicating the constitutional agenda by adding another item? Why don’t they just shut up?’ ”
At the same time, some critics—including Harcourt—express concern that an enshrined social charter could empower the courts to order governments to provide certain services without any regard for the cost. Said Harcourt: “I do not want judges making these decisions. I want elected people who are accountable to
their fellow citizens to make these decisions.” Romanow has also expressed his preference for leaving “social policy within the realm of politics” rather than a court-enforced charter. Indeed, even the Ontario government acknowledges how unpalatable it would be to have judges deciding what social services governments should provide. In a discussion paper on the subject released in September, Ontario’s New Democrats suggested that a social charter should not, in general, transfer power from
elected representatives to the courts. At the same time, Ontario has proposed that the courts be allowed to enforce such rights as universal access to medicare. Rulings on more specific benefits, such as eligibility for welfare, would be left up to another institution—possibly a reformed Senate.
Rights: There are numerous precedents for such a social charter. Indeed, Japan, Switzerland and Germany are among the wealthy industrialized nations that have already entrenched social rights in their constitutions. Other, less affluent nations have also done so, among them Ireland, Turkey and Mexico. The rights entrenched in those cases range from such basics as free primary education to more sophisticated social programs, including unemployment and maternity insurance. But it is far
from clear that constitutional charters offer the most effective protection for social rights. The Mexican Constitution, for one, proclaims the right of every family to decent housing and of every worker to a minimum wage sufficient to meet the “normal material, social and cultural needs of the head of a family.” Still, millions of Mexicans receive bare subsistence wages while living in shantytowns without running water or sanitation.
Whatever their reservations about it, the
other NDP leaders are likely to find Rae’s proposed charter difficult to sidestep. For one thing, it is directly aimed at the social concerns that he at the heart of New Democratic philosophy. As well, Ontario’s premier has made it clear that he is ready to link his province’s agreement in other constitutional areas—notably the economy—to concessions in favor of some form of social charter. The new NDP triumvirate may yet decide to act in concert on the constitutional issue. But if Harcourt and Romanow follow Rae’s lead in bringing their own demands to the table, they may well succeed only in making an already difficult task even more complex.
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