What the accord says—and what it means

MARY JANIGAN October 20 1992


What the accord says—and what it means

MARY JANIGAN October 20 1992




What the accord says—and what it means

In an evocative, almost nostalgic touch, the 60-clause constitutional agreement at the centre of the Oct. 26 referendum is known simply as the Charlottetown accord. It was in Charlottetown, after all, that politicians from Britain’s North American colonies first discussed the daring notion of a federal union in early September of 1864. But the patriotic allusion to the birthplace of Canada has obscured other, perhaps more important lessons from the first Charlottetown Conference. It is now little known that the politicians went to Charlottetown under duress—Prince Edward Island threatened to stay away unless it hosted the gathering. The conference itself started three years of acrimonious debate: the Fathers of Confederation squabbled over the division of federal and provincial powers; they fought bitterly over the structure of the Senate and other institutions. And when, after myriad meetings and compromises, they finally hammered out their basic constitutional document, the British North America Act, 1867, it was an arid text, devoid of poetry, in which different Canadians could discern vastly different visions of their nation.

Still, Canada has lasted 125 years.

The new agreement is an intricate package that, if approved, would overhaul Canada’s Constitution. Its wide-ranging proposals would alter the established division of powers, the interpretation of basic rights, the financial arrangements among governments and the very structure of such institutions as the Senate and House of Commons. Like the original Confederation pact, it is an uneasy compromise—an understanding that was reshaped and refined to the point that Ottawa, all 10 provinces, the two territories and four aboriginal groups were able to endorse it in August, after six months of gruelling, often caustic negotiations. More pointedly, as with the Confederation agreement, it offers no inspiring national vision. Like their predecessors in 1864, the negotiators instead embraced often-contradictory understandings of the nation.

As a result, the accord is a fragile, almost fragmented document: no government and no group got everything that it wanted; all accepted some elements that displeased them. Each component is surrounded by a thicket of qualifiers and conditions; many important provisions require further negotiations. The West received an elected Senate with equal membership from each province; in return, Quebec received a guarantee of 25 per cent of the House of Commons seats, no matter how the national population shifts. Aboriginals gained recognition of their inherent right to self-government; in return, aboriginal laws cannot be inconsistent with provincial and federal laws “which are essential to the preservation of peace, order and good government in Canada.” Quebec received recognition of its distinct society; in return, the text includes a partial, and probably limiting, definition of that society. Each negotiator, in fact, made concessions in some sections to receive benefits in others. In the referendum, Canadians will decide whether they can accept

those compromises. But both sides are also asking voters to weigh what will likely happen in the aftermath of the referendum. The accord’s detractors claim that it is a flawed document that will lead to too many disruptive changes. They say that if Canadians reject it, the nation will survive; new leaders will eventually forge better agreements. Its supporters, however, claim that the accord represents the best possible compromise among widely disparate interests. They add that if Canadians support it, their leaders can then turn their attention to pressing economic and social problems. As well, some Yes proponents warn that

rejection of the agreement might lead to the eventual breakup of Canada.

In the end, the voters will pass judgment on the compromises—and the potential consequences. Over the past two weeks, each Canadian household was to have received a copy of the accord. The referendum question facing voters is deceptively simple: “Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?” Yes. Or No. But there are no easy answers, especially in the eight contentious areas that form the heart of the agreement. In the following pages, Maclean ’s examines those key components—and the controversies surrounding their effects—in the order that they appear in the Charlottetown accord.


The Canada Clause

(from the draft legal text of the Charlottetown accord)

1. The Constitution Act, 1867, is amended by adding thereto, immediately after Section 1 thereof, the following section:

“2. (1) The Constitution of Canada, including the Canadian Charter of Rights and Freedoms, shall be interpreted in a manner consistent with the following fundamental characteristics:

(a) Canada is a democracy committed to a parliamentary and federal system of government and to the rule of law;

(b) The Aboriginal peoples of Canada, being the first peoples to govern this land, have the right to promote their languages, cultures and traditions and to ensure the integrity of their societies, and their governments constitute one of three orders of government in Canada;

(c) Quebec constitutes within Canada a distinct society, which includes a French-speaking majority, a unique culture and a civil law tradition;

(d) Canadians and their governments are committed to the vitality and development of official language minority communities throughout Canada;

(e) Canadians are committed to racial and ethnic equality in a society that includes citizens from many lands who have contributed, and continue to contribute, to the building of a strong Canada that reflects its cultural and racial diversity;

(f) Canadians are committed to a respect for individual and collective human rights and freedoms of all people;

(g) Canadians are committed to the equality of female and male persons; and,

(h) Canadians confirm the principle of the equality of the provinces at the same time as recognizing their diverse characteristics.

(2) The role of the legislature and Government of Quebec to preserve and promote the distinct society of Quebec is affirmed.

(3) Nothing in this section derogates from the powers, rights or privileges of the Parliament or the Government of Canada, or of the legislatures or governments of the provinces, or of the legislative bodies or governments of the Aboriginal peoples of Canada, including any powers, rights or privileges relating to language.

(4) For greater certainty, nothing in this section abro-

gates or derogates from the aboriginal and treaty rights of the Aboriginal peoples of Canada.”


The issue: For generations, many Canadians have complained about the lack of an inspiring preamble in Canada’s Constitution. There is no poetic statement of national ideals and aspirations in the four paragraphs at the beginning of the Constitution Act, 1867. Instead, there is a briskly practical explanation that Confederation, with a Constitution that is “similar in principle to that of the United Kingdom,” would help the provinces and promote the British Empire. The controversial Canada clause began as a simple remedy for that lack of poetry.

In September, 1991, Ottawa proposed the inclusion of a general statement that outlined who Canadians “are as a people and who we aspire to be.”

The agreement: After months of negotiations, the clause has lost its poetry—but it has vastly greater powers than Ottawa had originally envisaged. The current version has become a four-section “interpretative” device that applies to the entire Constitution, including the Charter of Rights. Its list of “fundamental characteristics” is explicitly intended to guide the courts as they wade through the tangle of competing rights and values.

The very list is contentious.

• recognize Quebec as a “distinct society,” which includes a French-speaking majority, a unique culture and a civil law tradition;

• give a role to the legislature and government of Quebec in preserving and promoting that distinction;

• commit Canadians—and their governments—to the vitality and development of official-language minority communities;

• commit Canadians—though not their governments—to racial and ethnic equality, to the equality of men and women and to respect for individual and collective rights;

• recognize the right of aboriginals to promote their languages, cultures and traditions and define their governments as one of three orders of government in Canada, along with Ottawa and the provinces.

The controversy: Opponents of the Charlottetown accord argue that the Canada clause would establish a distressing “hierarchy” of rights because it commits governments only to the development and promotion of language rights—and not to racial, ethnic and gender equality. They also point out that the powerful clause does not mention the rights of such groups as the disabled and homosexuals.

In response, supporters of the accord point out that the Charter already affirms key rights in blunt language: rights are guaranteed equally to men and women; the law must treat each person equally without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. They argue that the wording of the Canada clause does not allow the courts to trample upon those firm guarantees. Indeed, they say, governments are the servants of Canadians: if Canadians are committed to an ideal, governments must do their bidding. They blame the clumsy wording on the negotiators’ misguided yearning for balance: that is, the government of Quebec has the right to promote

the distinct society—so Canadians and their governments should commit themselves to minority-language rights.

Still, there is no doubt that the Canada clause could subtly affect key court decisions—if only because it adds new characteristics for the courts’ consideration. The Charter already allows governments to set “reasonable limits” on rights: no one, for example, can use freedom of expression to libel an individual. The Canada clause would put new factors into that search for delicate balance. It could have made a difference to some decisions, such as the Supreme Court of Canada ruling in 1988 that Quebec contravened the Charter when it banned the use of English on outdoor commercial signs (although that ban continues because of the so-called notwithstanding clause, which allows provinces to maintain some legislation, even if it violates Charter provisions). Under the accord, Quebec’s status as a distinct society could influence the court to accept such a ban.


The issues: There are two—the free flow of goods, services, people and capital among the provinces and territories, and the guarantee of basic social rights to all Canadians. They became twinned when some politicians, mainly from the left, said that they could not support the Conservative government’s proposed economic clauses without the inclusion of a so-called social charter. On the economic side, provinces have often inhibited free trade with each other in order to protect the interests of local businesses. Federal efforts since

September, 1991, to negotiate the removal of those barriers have met resistance from many provinces on the grounds that they would threaten local economies. Recently, interprovincial barriers have become increasingly apparent as Ottawa negotiated free trade agreements, first with the United States, then with the United States and Mexico. Those agree-

ments provide for fewer barriers to trade with the rest of North America than there are among provinces. On the social side, Ontario Premier Bob Rae and others suggested that the Constitution should include a list of social rights as a poignant reminder that Canadians have both economic and social goals.

The agreement: The Charlottetown accord would commit governments to “the principle of the preservation and development of Canada’s social and economic union.” The economic aims include: the goal of full employment; the free movement of goods, services, people and capital; and working together to strengthen the economic Ä

union. The first ministers would consider the establishment of an independent agency to resolve disputes among governments.

They would also set up a “mechanism for monitoring” the economic and social union at a future conference. The social commitments include: reasonable access to housing, food and other basic necessities; a health care system that is comprehensive, universal, portable, publicly administered and accessible; and the preservation of the environment for present and future generations.

The controversy: The agreement means almost nothing. It makes little progress in the so-far intractable problem of removing economic barriers: it simply hands that challenge to future A first ministers’ con-

lUHHÉte» ferences. The social provisions, in turn, are little more 1 I than pious commitments

that carry little legal clout. As a result, the accord’s detractors denounce both provisions as shams. The accord’s proponents argue that governments must dismantle their trade barriers through political negotiations—not through constitutional clauses. As to specifying social rights, they say that would effectively hand to the courts the traditional role of governments to dictate social policy and spending.

The only provision in the clause that could have major weight before the courts is an amendment to the current equalization provisions, under which the poorer provinces receive funds from the rest of Canada. The Constitution already commits Ottawa and the provinces to providing reasonably comparable levels of public services to all Canadians. The accord adds a new commitment: “to ensure the provision of reasonably comparable economic infrastructures of a national nature

in each province and territory.” It is possible that the courts could interpret such a specific addition to force wealthier governments to make equalization payments to poorer provinces, even if those richer governments are themselves hard-pressed.


The issue: Provinces in Atlantic Canada and the West have complained for decades that the federal government caters to Central Canada at the expense of their interests. To remedy that, some provinces have demanded an elected Senate with an equal

number of members from each province. They argue that an equal upper house would balance

the dominant influence of Ontario and Quebec in the House of Commons, where representation is roughly based on population. But that demand triggers a clash between two visions of the nation. Many Canadians— especially in the West and Newfoundland— consider all provinces to be equal. But in Quebec, where there is a strong sense that French-Canadians and English-Canadians are the two founding partners of Canada, an equal Senate is widely seen as diminishing Quebec’s pivotal role within Confederation.

The agreement: The accord walks a careful line between those approaches: it changes both the Senate and the House of Commons to respond to both visions. It would replace the 104-seat, appointed upper house, in which Quebec has 24 seats, with a smaller, elected chamber: six seats for each province; one for each territory; and an additional, still unspecified number of seats for aboriginal peoples. Senate elections would be held at the . .Tie time as federal elections; each provincial government would have the right to decide if its voters or its legislature will elect its senators (only Quebec has indicated a preference for its legislature). Provinces could also stipulate that their Senate representation must include equal numbers of men and women.

To balance that recognition of provincial equality in the Senate, the accord would guarantee Quebec a minimum of 25 per cent of the seats in the House of Commons. As well, while eliminating 42 Senate seats, the accord would add 42 new seats to the Commons, creating a 337-seat chamber. Quebec would get 18 of those seats, Ontario 18, British Columbia four and Alberta two. (There would then be a further adjustment after the 1996 census to ensure that every province has at least 95 per cent of the seats that it would receive under strict representation by population.) The accord also provides for special voting procedures if a bill affects French language or culture: that bill would have to receive so-called double-majority approval—a majority of French-speaking senators as well as an overall majority of senators.

The accord would also create an intriguing new relationship between the Commons and the Senate. In theory, the current Senate can defeat most legislation; in reality, the unelected body has rarely blocked or even amended Commons’ bills. In contrast, the new Senate would have the potential to exert real power.

/'-v A simple majority of senators could _J> *v defeat bills that make fundamental

1 changes in the taxation of natuJ 1 ral resources or electrical enerf / \ gy. And the new chamber could

force the government to take a second, hard look at most other legislation (although it can only delay basic spending bills for 30 days). Under the legal text, if the Senate defeats a bill, a joint Senate-Commons committee would attempt to find a compromise; failing that, a simple majority vote in a joint Commons-Senate sitting, called the Congress, would determine the fate of the bill.

The controversy: Many detractors point to Quebec’s guaranteed 25-per-cent representation in the Commons. They argue that other provinces, notably British Columbia, are growing fast while Quebec’s population is declining. But the accord’s proponents counter that it honors and protects Quebec’s historic place within Canada. They also point out that the rough guidelines for representation by population would apply to the other provinces.

Some of the accord’s detractors also dislike the restrictions on the proposed Senate’s powers. They argue that it cannot represent the regions effectively unless it can defeat all Commons legislation—with the exception of basic money bills—through a simple majority vote. Proponents counter that, with more than 60 per cent of Canadians living in Ontario and Quebec, senators who represent a minority of the population should not have the power to defeat all legislation.

4. OTHER INSTITUTIONS The issues: The Constitution Act,

1982, barely recognizes the Supreme Court of Canada: it simply outlines how governments can amend it. As well, the Constitution does not allow for a provincial voice in the operation of the Bank of Canada, the nation's most influential financial institution. And it makes no provision for regular federal-provincial meetings.

The agreement: The accord would firmly entrench the Supreme Court in the Constitution Act, 1867—as a symbol of the court’s importance to the nation. In ac-

cordance with the current Supreme Court Act, the court would have nine justices, including three from Quebec. But the federal government, which has had exclusive power to appoint the judges, would make its selections from lists provided by the provinces and territories. The accord would also allow an elected Senate to block the appointment of the Bank of Canada governor. And it would entrench a requirement for annual first ministers’ conferences.

The controversy: Some opponents want a guarantee of more judges from outside Central Canada. Accord opponents also maintain that entrenchment of first ministers’ conferences will encourage a trend towards “executive federalism”—the formulation of important national policies by a select and often secretive group of ministers or first ministers.


The issue: When the Fathers of Confederation created the nation, they divided the power to make laws between the provincial and federal levels of government. Their work was diligent and explicit: the Constitution Act, 1867, states that provinces have the right, among other things, to administer saloon licences and to establish asylums; Ottawa, in turn, regulates lighthouses and quarantines. The Fathers were equally careful to establish sources of revenue for those govern-

ments: provinces can use direct taxation such as sales taxes; Ottawa can raise money “by any mode or system of taxation.” But those 19th-century politicians overlooked a critical aspect of the federation: whether Ottawa could spend money on programs within areas of provincial jurisdiction.

That constitutional oversight has shaped the nation. After the Second World War, Ottawa poured money into shared-cost programs in many traditional areas of provincial responsibility: medicare; income-support for needy pensioners; a generous funding program for universities. Federal spending has fostered the Canadian dream of a caring, expansive, social-safety net. But federal spending has also disturbed many provinces because Ottawa determines the spending priorities—and because Ottawa often decides the shape of the programs. One point of contention: although the provinces are paying an increasing portion of the tab

for health care, Ottawa can withdraw its contribution if the provinces impose user fees. The agreement: The accord recognizes that Ottawa has a constitutional right to spend money in areas of provincial jurisdiction—but it would limit that ability. Under the accord, Ottawa can establish new sharedcost programs in areas of exclusive provincial jurisdiction, but if a province decided to opt out of any program, Ottawa would still pay the federal share as long as the province set up a program “compatible with the national objectives.”

The controversy: The accord’s opponents claim that those limits would prevent future federal initiatives involving child care, education and health. They say that provinces would devise vastly differing programs; there would be no national standards and no national response to society’s changing needs. As an example, those opponents speculate that Ottawa might eventually introduce a nonprofit child-care program; provinces, in turn, could opt out and still receive federal funds for private day care institutions—or for programs that pay mothers to stay at home. The accord’s supporters argue that federal spending often ignores pressing local needs; federal guidelines often distort each province’s ability to tailor programs that respond to those needs. As well, federal spending has created inefficiency and overlap.


The issue: When the Fathers of Confederation allotted federal and provincial powers, they could not foresee how modem complications would blur their tidy categories. They made little provision, for one, for the protection of the environment. They could not have anticipated the birth of new technologies such as broadcasting and aeronautics—although the courts eventually assigned those two fields to Ottawa. And they did not foresee that jurisdictions would increasingly overlap as governments became more active.

As a result, many provinces, especially Quebec, have called for an overhaul of the 1867 list: they want more powers—and a clearer division of those powers.

The agreement: The Charlottetown accord contains two basic approaches to the distribution of powers. First, the accord tackles the so-called six sisters: forestry, municipal and urban affairs, mining, tourism, housing and recreation. Although Ottawa spends about $3 billion each year in those areas, it has always conceded that the provinces have the right to legislate in those fields. Under the accord, provincial jurisdiction would become explicit—and exclusive. If a province wanted Ottawa to withdraw from its programs in those fields, it would negotiate an agreement to obtain federal funds to continue those programs. Those agreements would guarantee the amount and the type of funding—and they would last for a maximum of five years.

Secondly, the accord allows for agreements in five fields of shared management:

• Immigration: The accord provides for detailed federal-provincial agreements, which would likely be similar to a 14-year-old pact between Ottawa and Quebec. There, both governments set the selection criteria, and independent immigrants who want to settle in Quebec must meet Quebec’s requirements.

• Labor-market development: Manpower training would become an exclusive provincial responsibility; unemployment insurance would remain a federal responsibility.

• Culture: The provinces would receive exclusive jurisdiction over cultural matters “within the provinces.” Ottawa would maintain its responsibility for such national institutions as the Canada Council and the CBC.

• Telecommunications: The provinces might participate in the selection of members of the Canadian Radio-television and Telecommunications Commission (CRTC). They could also sign agreements that would allow them to regulate some telecommunications carriers, such as telephone companies, if they agree to harmonize their procedures with Ottawa. It is not likely that Ottawa would

negotiate agreements that cover cable TV.

• Regional development: Both levels would retain their right to devise programs. But the federal government would have to negotiate regional development agreements at the request of individual provinces. Those agreements would likely set goals and funding.

The controversy: Detractors oppose the proposals for differing reasons. Some argue that they would create a “patchwork quilt” Canada: if each province negotiated an agreement in each area, there could be hundreds of different arrangements. They also complain that those agreements would commit federal funds for up to five years, even if priorities changed. Other critics argue that the accord does not go far enough. Quebec nationalists, for instance, argue that the province requires the unequivocal transfer of more powers to promote its well-being. By contrast, the accord’s supporters maintain that it constitutes a practical, flexible mechanism for adapting to a complicated, rapidly changing world: each province has the right to decide what powers it wants; each province has the right to change its arrangements.


The issue: European settlement strictly limited native lands—and put severe pressure on traditional customs. As a result, native people now face a staggering array of social problems. Last week, in one illustration of their difficulties, the Royal Commission on Aboriginal Peoples reported that unemployment rates on some reserves are as high as 95 per cent—and the high school drop-out rate is up to 90 per cent. The teenage suicide rate is among the highest in the world. That devastation has deeply affected aboriginal leaders. Increasingly, in the courts, lawyers have asserted their peoples’ rights to hunt and fish and to administer their own lands, citing their treaties with the British Crown, Royal Proclamations, and their inherent aboriginal rights.

The agreement: The natives’ determination—and their growing legal strength—resulted in a remarkable accord provision: constitutional recognition of their inherent right to self-government. The accord would allow the 633 Indian bands across Canada to negotiate individual self-government agreements with Ottawa, the provinces or territories.

The 32,000 Inuit and the 500,000 Métis and non-status Indians, many living in urban centres, would also share that right. Five years after the self-government provision takes effect, negotiators who remained deadlocked could ask the courts to decide the scope of self-government.

The controversy: Those provisions have caused enormous uncertainty because selfgovernment has not been defined. It could, for example, encompass such areas as health, education, justice, commercial law, environmental protection and resource management. Among the few clues to its possibly breath-

taking scope is the so-called contextual clause. It stipulates that aboriginal legislatures have the right “to safeguard and develop their languages, cultures, economies, identities, institutions and traditions.” They would also have the right “to develop, maintain and strengthen their relationship with their lands, waters and environment.” The draft legal text adds that those rights would allow aboriginal legislatures “to determine and control their development as peoples according to their own values and priorities and to ensure the integrity of their societies.” Still, the accord does contain several vital limitations. The legal text clearly states that aboriginal rights are guaranteed equally to men and women: that right is untouchable; it applies “notwithstanding” any other provision. The text also stipulates that aboriginal laws may not be inconsistent with federal or

provincial laws “that are essential to the peace, order and good government of Canada.” (Still, the courts could largely restrict the use of that clause to national, economic or military emergencies). Finally, there is no provision within the legal text to compel other governments to finance aboriginal governments; instead, governments would negotiate nonbinding political accords. That provision would leave Ottawa and the provinces with some control over the still-undetermined cost of self-government.

There remains, however, a serious debate about the consequences of self-government.

Its opponents argue that it could create undemocratic, racially based territories similar to the notorious black homelands of South Africa. They note that the charter’s democratic rights do not apply to aboriginal governments. In theory, aboriginal governments could deny the vote to their citizens or, they could allow natives to vote but deny the vote to non-natives living on their territory.

As well, the accord adds a new twist to the charter’s limitations on mobility rights. Currently, the provinces can pass laws that hinder the right to move and to work within Canada—if those laws are designed to improve the condition of socially or economically disadvantaged peoples. The accord would extend that provision to aboriginal governments—but it would also let those governments restrict mobility to protect and to advance their languages and cultures. Critics say that the provision could allow reserves to ban non-aboriginal workers from reserve-based industries.

The accord’s supporters argue that Canada’s bureaucrats have suffocated aboriginal peoples with non-democratic rules for more than a century—and that Ottawa itself created Canada’s reserves. As well, they maintain that Canadians should not assume that the British parliamentary tradition represents the only model for legitimate representative government. Indeed, many aboriginal bands have operated through consensus for centuries.


The issue: Quebec has always maintained that the Constitution Act, 1982, removed its traditional veto over major constitutional changes. Although the Supreme Court ruled in 1982 that Quebec’s veto never officially existed, Quebec has vehemently demanded its return. Under the current complicated formula for amending the Constitution, there are only five areas, including changes to the status of the Queen, which require the unanimous consent of the provinces (effectively a veto for all provinces). Other changes

require only the consent of seven provinces with at least 50 per cent of the national population. Quebec’s demand puzzles and irritates other provinces because it appears to define a special status for that province. Native people, in turn, are demanding a veto over changes that affect them.

The agreement: The accord would add three provisions to the list of those that require unanimous consent: changes to the Senate; changes to the House of Commons, including Quebec’s 25-per-cent guarantee; and changes to the role and composition of the Supreme Court (the nomination process would remain subject to the so-called sevenfifty rule). As well, the accord would turn back the constitutional clock: it cancels a provision in the Constitution Act, 1982, that requires the consent of seven provinces with 50 per cent of the population for the creation of new provinces. Instead, Ottawa would regain its right to create new provinces through a simple act of Parliament—after first consulting all provinces at a first ministers’ meeting. Then all provinces would have to agree before any new province received its allotment of six senators and the right to participate in amendments that affect other provinces. The accord also stipulates that aboriginals have to consent to constitutional amendments that directly refer to them.

The controversy: The accord’s detractors say that unanimity among governments is almost impossible. As a result, they add, it is dangerous to apply unanimity to such a criti-

cal institution as Parliament. The accord’s proponents counter that it should be difficult to change the basic structure of government. As for the admission of new provinces, Quebec nationalists claim that public pressure would force the existing provinces to cede Senate seats and amending powers to new provinces, resulting in a loss of status and power for Quebec. Other critics argue that new provinces should automatically receive the same rights as existing ones.