Anthony Wilson-Smith September 7 1992



Anthony Wilson-Smith September 7 1992




Even when they disagreed strongly during their constitutional negotiations, Prime Minister Brian Mulroney and the 10 premiers usually tried to play down their differences in public. But as the first ministers and leaders of the country’s territories and aboriginal groups met in Charlottetown last week, they introduced a new wrinkle. They publicly denied that they had reached a formal agreement on a planned national referendum on constitutional reform in late October, even though there was every indication that they were privately in accord. After two days of closed-door talks, Mulroney still did not confirm that there would be a referendum on last month’s constitutional package, adding that he would make an announcement this week—a delay presumably designed in part to accommodate the needs of Quebec Premier Robert Bourassa. But, al-

lowed Mulroney, “There is considerable support among the premiers and myself for the idea.”

In fact, last week’s talks marked the close of a long and arduous phase of the constitutional

reform process, and the start of a much shorter and more dramatic new chapter. Even though Mulroney and the other leaders reached a tentative agreement on Aug. 22, the wording and intent of several clauses remained unclear. In private, some federal and provincial advisers expressed concern that the fragile agreement might founder over seemingly arcane disputes about how the courts might interpret some clauses. But those issues were largely resolved in Charlottetown—and as a result, Mulroney advisers acknowledged privately, plans were made for a nonbinding referendum. But Bourassa still wanted to discuss the proposal with members of his Quebec Liberal party at a weekend convention. As well, the first ministers had not agreed on the wording of a referendum question, one of several issues that they hoped to settle this week.

With that, the country’s federal and provindal leaders can swing into action. Federal sources told Maclean’s that Mulroney is planning to recall Parliament on Sept. 8—and to rush legislation authorizing an Oct. 26 referendum through the House of Commons and Senate within nine days. The official campaign would last 36 days, following the terms of a private member’s bill on referendums that Parliament passed in June. Assuming that voters in all 10 provinces approved the package, all of the country’s legislatures would likely move to ratify the package by the end of the year.

Still, the agreement faces a series of potential pitfalls. The most direct danger is the possibility that voters in one or more provinces could reject the agreement. In theory, most

elements of the package need the support of just seven provinces representing at least 50 per cent of the population. But some key clauses require unanimity. And because the proposal is the result of a series of delicate compromises by the premiers, the removal of any one element might be enough to cause other provinces to withdraw their support— perhaps killing the agreement. According to some constitutional experts, the proposal needs unanimous approval because it would require changes to the authority of existing federal institutions. And unanimity is clearly required for Bourassa’s key condition that provinces be granted a right to veto any future changes to federal institutions. Those measures aside, constitutional experts say that it is

not clear how many other elements of the package require approval by all 10 provinces.

Even a strong referendum result in favor of the package in all provinces would not guarantee passage of the accord. Under the terms of the 1982 Constitution Act, any measure requiring the support of seven provincial legislatures representing at least 50 per cent of the population dies unless it receives those endorsements within three years of its passage by the first legislature. During that period, provinces that have passed the measure can vote to rescind support—as Premier Clyde Wells’s Newfoundland government did in the case of the Meech Lake accord, previously endorsed by the government of his predecessor, Brian Peckford.

The prospect of such a reversal already looms in Manitoba. Premier Gary Filmon faces two byelections this month that threaten to erode his Conservative majority—the party has 29 members in the 57-seat chamber. Both opposition parties have strongly criticized the agreement. In Quebec, where Bourassa’s Liberals trail the separatist Parti Québécois in opinion polls, there will likely be an election next year.

Proponents of a national referendum say that those political uncertainties are among the most compelling reasons to go ahead with an early vote. Although the referendum would have no legal force, said John Whyte, dean of law at Queen’s University in Kingston, Ont., it would be “incredibly persuasive” because it would reflect the will of the people. Moreover, a campaign waged simultaneously across the country would tend to focus the debate on national rather than regional interests, which are potentially more divisive.

Mulroney cited both of those arguments during a meeting last Wednesday with his cabinet. Several ministers from Quebec—led by Health Minister Benoît Bouchard—voiced concern that Quebecers might see as undue interference a federally sponsored vote being held in Quebec at the same time as in other provinces. But Mulroney said that there would be bitter opposition in the rest of the country to making an exception of Quebec—and he reminded Bouchard and other ministers that Bourassa would retain the right to stage a second referendum if he wished. In any event, Bourassa has said that he will not ask Quebec’s National Assembly to ratify the agreement until all other legislatures have passed it. By doing so, Bourassa hopes to keep the pressure on the rest of Canada while avoiding an embarrassing repetition of the Meech Lake experience, when Quebec approved an accord only to discover later that three other premiers wanted to amend it.

All of the first ministers agree that speed is the key to a successful resolution of the unity debate, and not just because of the danger that some could lose power before the ratification process ends. Swift action also serves as an enticement to frustrated voters who are bitter about the time and energy expended on constitutional discussions.

But it is already clear that the planned referendum will be hard-fought in at least four provinces: Manitoba, Quebec, Alberta and British Columbia.

B.C. Premier Michael Harcourt, who left Ottawa for a four-day vacation immediately after the announcement of the agreement, has come under heavy fire in his province from political opponents, some academics and many media commentators. The criticism has focused on two issues: Harcourt’s endorsement of the proposal to guarantee Quebec 25 per cent of seats in the House of Commons, and his acceptance of a formula to allocate additional seats in the House of Commons.

The new plan would give British Columbia 11.5 per cent of the seats in the Commons, compared with 10.8 per cent now. But it already has 12 per cent of the country’s population and is Canada’s fastest-growing province.

And until late in the negotiations, there was no provision to redistribute seats until after the next census, scheduled for 1996. But the first ministers ultimately agreed that the Commons seats could be reassigned before those census results are in.

Manitoba’s Filmon, meanwhile, will have to struggle to retain his razorthin hold on the Manitoba legislature, a task complicated by the fact that he is one of the few leaders to face organized opposition within the legislature to the proposal. By contrast, Liberal and New Democratic Party leaders in Alberta have said that they will support the proposal in spite of some misgivings. Outside the legislature, Premier Donald Getty will confront some opposition from the federal Reform party—whose members include many provincial Conservatives.

But the most emotional opposition is in

Quebec. Bourassa’s immediate challenge was to preserve his party’s unity in the wake of last weekend’s convention. Much of the criticism has centred on the notion that if Quebec signs the agreement, it will effectively renounce any hope of gaining more powers in future talks. To counter that, in private meetings with members of the party’s nationalist wing last week, Bourassa said that he regards the agreement

as “just one step” in the quest to gain new powers.

That claim is likely to cause widespread exasperation in other parts of the country, where Quebec’s appetite for constitutional change is often denounced as insatiable. Bourassa, however, is more concerned about opposition at home. At last Saturday’s Liberal meeting in Quebec City, strong shows of support for Bourassa and the package were interspersed with sharp criticism from some members—including Jean Allaire, the former head of the party’s constitutional committee, who argued that Quebec did not gain enough in the package. And Mario Dumont, president of the Liberal youth wing, said that he would not support the proposal in a referendum.

! One Bourassa adviser said I that the premier plans to argue that the referendum ofj fers Quebecers and other Ca’ nadians a choice between “taking a few timid steps to a

future together—or a giant step towards a future apart.” With the referendum countdown under way, Canadians will have to come to terms with a variety of questions about the proposals, and their own contradictory emotions.