MACLEAN'S FORUM

Gaining Strength From Diversity

How a forum of 12 diverse Canadians came together to write a detailed blueprint

MARY JANIGAN,NANCY WOOD January 6 1992
MACLEAN'S FORUM

Gaining Strength From Diversity

How a forum of 12 diverse Canadians came together to write a detailed blueprint

MARY JANIGAN,NANCY WOOD January 6 1992

Gaining Strength From Diversity

MACLEAN'S FORUM

How a forum of 12 diverse Canadians came together to write a detailed blueprint

Throughout the day, as snow slowly blanketed the grounds of Le Château Montebello, the 12 Maclean’s forum members wrestled with the gut-wrenching issue of Quebec’s place in Canada. Most of them insisted that Quebec should not receive special treatment: they drafted a narrow list of Quebec’s differences from the rest of Canada, carefully noting that the definition did not confer more power. But two Quebecers, lawyer Charles Dupuis and federal civil servant Marie LeBeau—self-described sovereigntists—chafed at the attempt to define and limit their society. They dismissed the rest of the group’s attitude towards Quebec as patronizing. By late Saturday afternoon, all the participants appeared sullen and irritable. Discussion was deadlocked. Finally, former Ontario premier David Peterson implored them to shake off their sour, resentful

moods. Declared Peterson: “We could warmly endorse the recognition of Quebec as a distinct society, not begrudgingly, but warmly.” That simple generosity apparently flabbergasted the group. Heads began to nod. In a unanimous burst of goodwill, they accepted Peterson’s proposal—and compromised on the single most contentious constitutional issue in Canada.

That compromise was the first step towards the development of a remarkable constitutional package. For the remainder of the weekend, group

members concentrated on those issues that they considered most important for national unity: the recognition of Quebec as a distinct society,

Senate reform and the guarantee of self-government for aboriginal peoples. At the same time, they vehemently discarded several key proposals in the 59-page package that the federal government tabled in September. For one thing, they rejected the claim that Ottawa required new powers in the Constitution to manage a modern economy. In the end, they pared their constitutional proposals to eight concise pages, including letters to their fellow Canadians, Prime Minister Brian Mulroney and the special parliamentary committee that is now examining the Constitution. As the 12 wrote to Mulroney, “We jointly endorse these recommendations. Our doing so served to remind us of the ability Canadians have as a people to come together and gather strength from their diversity.”

Although the forum members came from all regions of the nation and held sharply different views about the nature of federalism, they foùnd that they shared many profound values. Almost all of them expressed a visceral dislike of any proposal that could lead to “more government.” They complained that politicians were spending too much time on confusing constitutional issues while the economy foundered. And they shared a reluctance to enshrine new principles in the Constitution—unless politicians could prove that they were absolutely necessary. At the same time, they realized what they cherished about Canada: their families, their homes, their communities and the very nature of the country that allowed their cultural differences to thrive.

That realization sparked a generosity of spirit: the forum members agreed that the nation was strong enough to accommodate the needs of vastly different groups. They drafted a more generous “distinct society” clause for Quebec. They endorsed stronger representation for the West in the Canadian Senate. They welcomed self-government for native peoples. Said University of Toronto political scientist Richard Simeon: “This is an astounding level of agreement that zeros in on the fundamental first-order constitutional problems. This initially widely divergent group of citizens has shown that a constitutional settlement is within our grasp. It is now up to the politicians— and to the rest of us—to ensure that it happens.” The group modified the federal constitutional proposals, sometimes only slightly, sometimes much more radically. Their changes:

THE DISTINCT SOCIETY

The federal government proposed that the Charter of Rights and Freedoms should be interpreted to take account of “the preservation and promotion of Quebec as a distinct society within Canada.” It provided a partial definition of distinct society, noting that it includes a French-speaking majority, a unique culture and a civil law tradition. That proposal was designed to reassure the rest of Canada: the placement of the contentious distinct society clause in the charter

would prevent it from affecting other parts of the Constitution—such as the division of powers. The group was clearly wary of that proposal. The Quebecers resented the narrow definition. Said Dupuis: “A society is distinct on all kinds of matters. They are trying to simplify this idea to three specific points, and I think it is an error.” Many nonQuebecers, in turn, said that they feared that the clause conferred special benefits on Quebec. Ontario-born computer software sales executive Colin Finn, for one, declared: “People do not want to think of Quebec as better—and they interpret this as Quebec having more.” Those non-Quebecers insisted that the distinct society clause stipulate that it would not give more power to the people of Quebec than to the people of any other province. They also wanted the clause to state that Quebec was not “better or worse” than any other province. The debate simmered until Peterson interceded, pointing out how negative the group’s definition had become. Startled, they shifted their approach. The group’s clause contains two innovative—and far-reaching—additions. First, it states that the distinct society definition “is not limited in any way” to the three aspects in the federal proposal. As well, it stipulates, “This section in no way affects the rights outside Quebec of any person.” The group acknowledged that Quebecers might choose to favor collective rights over individual rights in order to preserve their heritage. But, the forum members continued, “The distinctiveness of Quebec is a historical fact and a current reality that enriches the lives of all Canadians.” Said Simeon: “I love the spirit. This is a huge reaching out to Quebec.”

NATIVE RIGHTS

The federal proposal would recognize the aboriginal right to selfgovernment—although implementation of that right may require 10 years. There is no legal definition of self-government: the proposal says that Ottawa, the provinces and the territories should negotiate with native groups to establish agreements. If, after 10 years, there is no agreement on what self-government entails, natives would still receive the right—and the courts would define the concept.

Although the 12 participants were sympathetic to native claims, some of them worried that the bestowal of undefined—and unlimited—rights might have serious consequences. Crown prosecutor Richard Miller of Richmond, B.C., for one, said that native groups wanted immediate recognition of their right to self-government—before that right was defined. Declared Miller: “You are saying to us, ‘You must agree to sell us your car. And once you have agreed to do that, then we will discuss price and warranties.’ ” Replied Yukon film-maker Carol Geddes, a Tlingit Indian: “But it is not your car. That’s the whole bloody thing. You think it is your car and it is not your car.” She said that native groups had governed themselves long before Europeans arrived on the continent and

that that they right. had But never she conceded forfeited that self-government has different meanings for different native groups: “We understand it is going to be very hard to define.” In the end, members of the group again compromised. In a groundbreaking concession, they recognized that aboriginals retained an “inherent” right to self-government

that Ottawa could not grant or take away. They added that native rights included the right to preserve their distinct societies and values; to govern such civil activities as inheritance and education; and to be involved in the criminal justice system. They conceded that forms of selfgovernment would vary widely among regions and cultures, but they stipulated that “the rights of First Nation peoples shall be exercised in ways that respect the rights of others.” Where there was conflict between natives and non-natives, they decided, the courts should settle unresolved disputes. Experts called the group’s proposal more generous than Ottawa’s. University of Toronto law professor Patrick Macklem particularly approved of the use of the word “inherent” and the elimination of the 10year delay in implementation. As well, he applauded the group’s attempt to define self-government as a good way to reassure non-natives. But he cautioned that their good intentions might backfire in two areas. The right to “preserve” aboriginal societies, he added, might protect only traditional forms of self-government—and prevent natives from modernizing. The participants’ decision to distinguish between civil and criminal matters also conflicts with the approach of most aboriginals. Declared Macklem: “In many First Nation cultures, that distinction is alien—they do not divide the universe of wrongs.” Still, he said, “The tone is one of reaching out—and that is constructive.”

SENATE

The federal proposals call for an overhaul of Canada’s appointed upper house. Ottawa now selects the members of the 104-seat Senate according to an antiquated formula that, among other idiosyncrasies, gives four seats to tiny Prince Edward Island and six seats to British Columbia, which has about 25 times the population. In its place, Ottawa calls for an elected Senate with “much more equitable” provincial and territorial representation, but does not recommend any specific formula for distributing those seats. The new Senate could defeat most House of Commons legislation, but it could only delay “matters of national

importance,” such as defence, for no more than six months. Bills affecting language and culture would require the approval of a so-called double majority—that is, a majority of both francophone and anglophone senators. Finally, under Ottawa’s proposals, the Senate would lose its power to defeat—or even review—government money bills required for day-to-day finances.

The forum members agreed that the Senate should be changed to reflect the interests of both individual Canadians and their regions. They called for a greater “voice” for the West, indicating that the four western provinces should have as many seats as Ontario and Quebec combined. (The West, with 24 seats, now has half the representation of Central Canada.) They rejected some current demands that the provinces should have an equal number of seats, arguing that it would be unfair because of the huge disparities in population. But they endorsed the government’s call for an elected Senate. And they agreed that senators should have fixed six-year terms—with Senate and House of Commons elections to be held at different times.

But the group members were reluctant to allow the Senate to overrule the Commons. As a result, they stipulated that the Senate could not veto any legislation—only delay it for up to six months. They did agree with the federal proposal that a double majority of anglophone and francophone senators must approve legislation dealing with language and culture. Said University of Calgary political scientist Roger Gibbins: “It is going to be difficult to have elected senators who have their hands tied in terms of the power that they can exercise. But the main thing is that the group started to make headway in terms of cracking the issue of the number of seats.”

ECONOMIC UNION

The federal proposal is a complicated package designed to modernize the Canadian economy in an increasingly competitive world. Although the Constitution Act, 1867, prohibits interprovincial tariffs, it has not prevented the use of non-tariff barriers on products such as beer. Now, Ottawa wants to amend the Constitution to remove all barriers that impede trade and business operations across provincial borders. The federal proposal would guarantee freedom of movement to all “persons, goods, services and capital.” It would also 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.

Members of the group repeatedly expressed their overwhelming concern about the state of the Canadian economy. Said textile designer Karen Adams of Toronto: “People think, ‘If I don’t have enough money to put food on the table, I don’t care about the Constitution.’ ” And they applauded the call for the removal of trade barriers among provinces. Said Miller: “It is a tremendous idea to increase economic efficiency.” But they shared a distaste for complicating—and delaying—the constitutional talks by interjecting economic concerns. As well, they were reluctant to enshrine economic policies in the Constitution. Said Colin Finn: “Economic policies have to be dynamic, able to change.” In the end, the members of the Maclean ’s national forum formally supported the removal of trade barriers, but they said that the goal should be achieved through negotiations between the provinces and the federal government. After a probing discussion with Montreal Liberal MP Paul Martin, they proposed that a commercial tribunal should be established to enforce free trade among the provinces. But they resolutely refused to give new economic powers to Ottawa, noting that strong regional and national economies can “best be achieved

outside the Constitution.” Experts were divided on the value of the group's decisions. Thomas Courchene, the director of the school of policy studies at Queen’s University, said that he was “very impressed.” He, too, doubts the wisdom of Ottawa’s plan to entrench economic policy in the Constitution. In particular, Courchene applauded the group’s call for a free trade tribunal that could give high-profile exposure to interprovincial barriers “which curtail citizens’ rights.” By contrast, University of Alberta economics professor Kenneth Norrie noted that the provinces have frequently promised to drop trade barriers—but nothing happened. Said Norrie: “I do want binding provisions on the provinces. I do not really have much faith in provincial politicians.” For his part, Constitutional Affairs Minister Joe Clark told Maclean ’s that Ottawa is seeking new powers because the present system has failed. Declared Clark: “You can only defend the status quo if it is working. The evidence is pretty strong that it is not.”

On a related subject, the 12 participants rejected a federal proposal to give a specific mandate to the Bank of Canada to fight inflation. But they did agree that the bank needed greater “regional input.”

SIMPLIFICATION

The group members were adamant that the federal proposals should be reduced and simplified. They quickly rejected Ottawa’s suggestion to add property rights to the Charter of Rights and Freedoms, on the grounds that it could create too many legal complications. They also jettisoned the proposal for a Council of the Federation that would formalize the practice of federal-provincial meetings—and give legal force to their agreements. Adams spoke for many participants when she

said that the council would only lead to “more government.” As well, members of the group gave little importance to the Canada clause, a general statement that would list 14 aspects of Canada’s character, including the “special responsibility borne by Quebec to preserve and promote its distinct society.” They did not exclude the possibility of a Canada clause, but they said that the Prime Minister should focus his attention on the promotion of such national institutions as the CBC and the National Film Board in order to foster a stronger sense of what it means to be Canadian. Queen’s University dean of law John Whyte suggested that the Canada clause did not stir the participants because it is so awkwardly written. But Whyte disagreed with their decision that the clause was not vital: “One should not underestimate the importance to Quebec of the distinct society elements in the Canada clause.”

DIVISION OF POWERS

The federal proposals on division of powers would allow Ottawa to transfer manpower training to the provinces, to recognize their exclusive jurisdiction over six areas, including tourism, and to negotiate constitutional agreements in the areas of culture and immigration with individual provinces. As well, Ottawa and any province would be able to delegate powers to each other.

Initially, the 12 members appeared overwhelmed by the complexity of that proposal. Many of them appeared to view the issue as a turf war between the provinces and the federal government. But many of them were also disturbed by the possibility that the proposals could allow Quebec to negotiate special arrangements with the federal government. That suspicious mood changed when Peterson explained that special arrangements have always been part of Canadian history—and part of the Constitution. In a brief history lesson, he informed the incredulous group that the Constitution Act, 1949, protects Newfoundland’s margarine industry from a potential flood of dairy products from other provinces.

In response, the group members wholeheartedly endorsed the proposal that “different and asymmetrical federal relationships between the provinces and the federal government are a valuable part of the Canadian model.” That critical breakthrough delighted Queen’s University’s Courchene: “It is just what is necessary for us to survive as a nation. As this huge federation evolves towards the millennium, pressures in Quebec right now can be satisfied—and at the same time, when pressures come up in British Columbia, they can be satisfied.”

The group’s resolutions represented a clear-minded approach to problems that have haunted Canada for generations. Like most Canadians, the participants were initially intimidated by the technical terminology and strong passions that surround most constitutional discussions. But their statement indicates that all Canadians can participate effectively in the debate on the nation's fundamental values—and accommodate one another’s differences. Noted Peterson: “The country will only be saved if there are enough spontaneous acts of generosity and kindness.” With their groundbreaking agreement, the 12 forum members may have achieved a victory for all Canadians—and perhaps for Canada.

MARY JANIGAN and NANCY WOOD

NANCY WOOD