Maurice Lavoie acknowledges that he has no special constitutional expertise. At 60, the retired printer from Richmond, Ont., is humble about his education and apologizes softly for having “skipped” university. But like many others who witnessed the death of the Meech Lake accord last year, Lavoie is no longer convinced that politicians and lawyers are more qualified than other Canadians to relieve the nation’s current constitutional woes. In that, he is joining a chorus across the land demanding more direct participation by the public in future amendments to the document that lays out the ground rules for Canadian society. Said Lavoie: “The Constitution belongs to the people, not to the politicians. This is the ultimate document of the people and should reflect the people.”
Increasingly, the demand for public participation has focused on proposals to create a constituent assembly, a body made up of both eminent and ordinary Canadians from across the country empowered to devise constitutional amendments. Indeed, that proposal is expected to figure prominently in the final report, due on July 1, of a special joint parliamentary committee that is studying the amending process. Apart from that, Ontario’s NDP Premier Bob Rae has given his support to the proposal. Newfoundland Premier Clyde Wells—like many Canadians, he said that the process that the First Ministers used to formulate the Meech Lake accord was too secretive and elitist—has also argued for a constitutional convention. Said Wells: “What we did last time was an utter failure, and I’m concerned that we’re headed in that way again.”
But the opposition to a constituent assembly is also strong. Liberal party Leader Jean Chrétien, one of the drafters of the 1982 Constitution that Quebec refused to accept, has said that there may not be enough time to organize and complete a constituent assembly if Quebec is serious in its threat to hold a referendum on independence in about 18 months—although Quebec Premier Robert Bourassa has indicated the process could be extended. Quebec politicians have to date flatly refused to consider participating in an assembly. And largely because of that refusal, Prime Minister Brian Mulroney has reacted coolly to the proposal, observing on April 25: “It would seem to me perhaps to be self-defeating to contemplate an exercise which will only exacerbate difficulties.”
Still, the Conservatives’ recent emphasis on constitutional consultation with Canadians may signal a new willingness to consider the establishment of a constituent assembly. Observed Constitutional Affairs Minister Joe Clark last week: “We have to move beyond the politicians.” In fact, members of Mulroney’s Tory caucus acknowledge that the idea is gaining popularity—and may become impossible for the government to dismiss out of hand. That was a familiar theme at hearings of the special parliamentary committee co-chaired by Tories James Edwards, MP for Edmonton Southwest, and Quebec Senator Gérald Beaudoin. During 11 weeks of hearings since Mulroney announced its appointment last December, the 17-member committee heard members of group after group express their support for a constituent assembly.
The committee is now reviewing submissions in order to begin preparing its report. Cochairman Beaudoin told Maclean ’5 that it is still too early to say whether the committee will recommend the establishment of a constituent assembly. But he noted: “It will be one of the key points in the report. We will thoroughly examine the question because, in the last few months, we certainly had a lot of presentations about it.”
Turning that kind of grassroots pressure into a reality may be difficult, according to Marcel Côté, a communications expert and former Mulroney adviser who is now chairman of the Montrealbased consulting firm Secor Inc. Said Côté in an interview: “Things like this are very seductive in appearance and the very devil to put into practice properly.” But some constitutional experts say that it could be done. On April 22, former Supreme Court of Canada justice Willard Estey and Peter Nicholson, senior vice-president of the Bank of Nova Scotia, presented a report to the Beaudoin-Edwards committee that outlined a concrete proposal for setting up the constituent assembly. “Constitution-building is for the people,” Estey declared. “It should not be technically complex and need not take forever.”
Under Estey and Nicholson’s proposal, every legislator in Canada would nominate three people to a pool of names from which between 250 and 300 would be chosen by lottery to be members of the assembly. Constitutional changes that they agreed on would then be submitted to a national referendum. Finally, in those provinces where a majority of voters approved the changes, the legislatures would endorse them immediately. If at least half of Canada’s population across a minimum of seven provinces agreed to the amendments, the House of Commons and Senate would then also ratify them. Estey said that such a procedure may seem daunting, but he added: “We should not be intimidated—rather, we should be excited by the opportunity.”
At the same time, some analysts say that it is an opportunity that Canadians should forgo. On May 1, visiting constitutional expert Francis Delpérée, dean of law at Belgium’s Catholic University of Louvain, noted in an appearance before the Beaudoin-Edwards committee that voters have already given their parliamentarians the responsibility to make laws. Those representatives, answering to the public, should also deal with matters concerning the ultimate law of the land, the Constitution. Added Delpérée: “What is right for lawmaking is right for constitution-building.” Delpérée said that he would favor a constituent assembly only for a country writing its first constitution, as the Americans did after the War of Independence.
Even those who approve of a constituent assembly acknowledge that it is overshadowed by larger issues—among them, who would sit on the assembly and how members would be chosen. Some analysts favor an appointed assembly that would exclude elected politicians. But others say that such a body would exist outside of the democratic process—and without public accountability. University of Toronto political scientist Peter Russell, for one, says that the majority of constituent assembly members should be elected politicians—already empowered by their constituents to exercise their judgment on the voters’ behalf—who have been chosen by their peers. Observed Russell: “Representative democracy is better than any system that I know of, and if we give up on that, I think the alternative is just chaos.”
Other experts also say that it would be a mistake to exclude politicians, who are accustomed to compromising between the often diverse demands of their constituents. In fact, according to Toronto constitutional lawyer Patrick Monahan, without the moderating presence of politicians on a constituent assembly, special-interest groups could play unduly influential roles. For one thing, said Monahan, who served as an adviser to former Ontario premier David Peterson, business groups could press to have a clause written into the Constitution to restrain government spending and outlaw budgetary deficits—a measure far too important to be decided outside of the democratic process.
As well, many critics express doubts that a constituent assembly could solve the nation’s problems. Instead, they say, it could become mired in the very regional and linguistic divisions that now threaten Canada’s survival— and have bedevilled more conventional attempts to solve the unity crisis. Edwards, for one, told Maclean ’s that he is interested in the idea of a constituent assembly. But he noted: “My nightmare is that it would be a fractious, contentious, divisive exercise that could ultimately destroy the country.” Added historian David Bercuson, dean of graduate studies at the University of Calgary: “The country is extremely divided. Any constituent assembly that represented the country as a whole would also be deeply divided. What do you do with the results of it?”
Indeed, Bercuson bluntly dismissed the whole undertaking as “another quack cure— and we have too many quack cures going around already.” But in spite of those concerns, it remains clear that many Canadians are keen to play a more vital role in the constitutional process. Maurice Lavoie, for one, says that he is no longer prepared to merely cast his vote during election time—the retired printer’s main contribution to the democratic process. “People have to mean something, and they cannot mean something if they can only say ‘yes’ or ‘no’ at an election,” he said. And that, at least, is one forceful emotion that governments can no longer ignore.
NANCY WOOD in Ottawa with ANTHONY WILSON-SMITH in Montreal, BRIAN BERGMAN in Toronto and RUSSELL WANGERSKY in St.John’s, Nfld-
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