Canadian Constitution Reform and Charlottetown Accord

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Abstract

The objective of this paper is to re-examine the Meech Lake and Charlottetown Accords, with the aim of evaluating the errors of the accords critically. After this evaluation, an attempt to make recommendations on possible solutions to the errors of the accords will be made.

Introduction

The Canadian constitution has a long and complex history. Since Canada was a British colony, the Canadian constitution was part of British law under the British North American act, 1867 that served as its constitution before amendments were made. It was a knotty situation since Canada had to look to another country before making amends to its own constitution. The British government, with the Statute of Westminster 1931, was ready to hand over the responsibility to the Canadians only that the Canadian federal governments could not come to an agreement on a new modus operandi with which they would make their amendments (Swinton, 1992. pg 142).

The groundwork for the constitution act of 1982 was laid down in 1981 when Prime Minister Pierre Elliot Trudeau reached an agreement with the other premiers, objected to only by the Québec premier René Lévesque with the Québec national assembly behind him. It was by the intervention of the supreme court of Canada which gave the ruling that the British parliament should pass the Canada act 1982 into law because the constitution applied to all the provinces with or without their agreement (Rocher & Smith, 2003. pg 35).

In 1982, the Canada Act, which also contained the Constitution Act 1982, was given approval by the governments of the United Kingdom, along with all the provinces of Canada other than Quebec. This act incorporated a formula for an amendment that would primarily involve Canadian governments only (McRoberts 1997). Thus at the time of the Meech Lake and Charlottetown Accords, Canada was in charge of her constitution review process. It was decided that at the initial stages, there would be a select committee to carry out the review, with the participation of the public coming in much later, at the very last stage of the referendum (McRoberts, 1997. pg 51). This proved to be a great weakness to the amendment process.

The thesis statement for this paper is that increased participation by the public in the process of the Meech Lake and Charlottetown Accords would have created higher chances of success.

The Meech Lake Accord

Up to the year 1982, Canada was a British dominion that had a constitution that was British Law and could only be changed by an act of the British parliament. Canadians coined their own phrase ‘patriate’ to refer to the process of amending their constitution. Thus, patriation refers to the process by which the Canadian constitution is amended without interference by the United Kingdom. Thus the Meech Lake Accord was one of Canada’s earliest attempts to reform her own constitutions without interference or guidelines from external power (Swinton, 1992., pg 144).

The Meech Lake Accord was an attempt made by the then Prime Minister Brian Mulroney at making amends to the Canadian constitution with the specific aim of talking the premier of Quebec into giving his endorsement to the Canadian Act. Quebec’s provincial government, which was controlled by the ‘party liberal du Quebec,’ and felt it best to remain in Canada under certain given conditions, gave its approval of the constitution. Why this attempt was unsuccessful is because it did not get universal support from all the provinces. Newfoundland and Manitoba did not support the accord because they felt that it endowed too much power to the province of Quebec, which in turn would weaken the country (Rocher & Smith, 2003. pg 40).

In 1987 at Willson House, Meech Lake Mulroney and other premiers sat together to work out the accord that became known as the Meech Lake accord. The agenda that was laid out for the accord had to address issues such as recognizing Québec as being a distinct society, having a constitutional veto for Québec, the delegation of powers to the provinces, especially in the area of immigration, the provision of the option of provinces funding their own programs and being given monetary compensation by the state. Lastly, that the provinces would have a say in the appointment of senators and Supreme Court judges, these were the same items on the agenda for the Charlottetown accord three years later that was created after the failure of the latter (McRoberts 1997.pg 127).

The Charlottetown Accord

Analyzing the Charlottetown Accord of 1992, Russell tells us that the federal government, together with twelve territorial governments worked on the second proposed Constitutional Amendment.

This attempt at constitutional reform was according to McRoberts, was more positively received by the Premiers. However, the revised constitution was still rebuffed when a nationwide referendum was conducted in October 1992. Only a dismal thirty-two percent of British Columbians were for the reforms, with the majority feeling strongly that the changes made to the constitution would not give the western provinces room for future amendments to be made. Others saw it as retrogressive, taking them back to the time before the Meech Lake Accord (McRoberts 1997.pg 153). The rejection of the amendments was a sign that the participation of the public to a greater degree should have been executed because the committees that worked on the reforms only represented a particular mindset, not popular opinion.

Compare and evaluate the Meech Lake Accord and the Charlottetown Accord

The Meech Lake and Charlottetown constitutional reforms both had three phases; these are the agenda-setting stage, the elite negotiation stage, and the last stage being the ratification stage. An elaboration by Swinton of what the first stage termed the agenda-setting phase says that it comes into play only after a good number of political stakeholders, with the backing of a section of the public, show an interest in making a constitutional reform on an area they feel is inadequate or misinterpreted.

This can be either on the legislature, the executive, or the judicial system. At the initial stage, that of setting the agenda, it is clear that both accords had roughly the same agendas. They had five key points that were to be deliberated over ( Swinton, 1992. pg 161). These were:

That Québec be recognized as a ‘distinct society’ within Canada.
That there be a redistribution of power between the provincial jurisdiction and the federal jurisdiction, especially in the areas of managing of natural resources, the telecommunications sector, and the responsibility for such icons of national heritage such as the Canadian Broadcasting Corporation.
That there be more stringent observances in the disbursement of federal funding
That Québec is given a constitutional veto.
And finally, that the provinces be given a say on the appointment of senators and supreme court judges.

The negotiation phase, also elaborated on by Swinton (1992, pg 162), is the second in the process of constitution review and entails an in-depth discussion of each of the issues brought up on the agenda. This is where the relevant political authorities analyze the sections of the constitution under review in an attempt to make them more concise when they are adopted. The Canadian system works in such a way that at this stage, the matter of reform is still almost entirely in the hands of the executive and administrative branches of both the provincial and federal governments. Why this is detrimental is because the people involved do not provide a true representation of the stakeholders of the constitution. There is no public opinion when these crucial matters are being reformed. Thus, the reformations implemented may not be those favored by the public (Swinton, 1992, pg162).

The main difference that came in at the second phase, the elite negotiation stage, was that while the Meech Lake convention had a constricted representation, with the elite being the dominant body, the Charlottetown convention had a more open representation since they used the open referendum system that was more effective. But according to Swinton (1992 pg 163), the play of the public was still not very much felt in the Charlottetown Accord.

The last stage is described by Swinton (1992, pg 163) at the phase where the agreements made for the amendments are subjected to either legislative bodies or consultative bodies or even referendums so that there is a feeling of fair play and of the process being democratically legitimate. It is even incorporated in the constitution since Part V of the Constitution Act 1982. It states that for the proclamation of a resolution, there must be the approval of the Federal Senate and the House of Commons as well as at least two-thirds of the Legislative Assemblies of the Provinces, which should constitute at least one half of the population of Canada.

At the last stage, where the amendment was to be ratified, both accords were subjected to a public vote. Both were voted against and, thus, not implemented.

What were their respective strength and weaknesses as instruments for solving constitutional conflicts in the country?

There must have been faults within the processes applied in both the Meech Lake and Charlottetown accords for them to have failed. Stein is of the opinion that though both processes had their shortcomings, they were of immensely different dimensions. Stein goes ahead that the greatest shortcoming of the Meech Lake process was that it was a closed process, with only a few select elites giving a narrow and biased representation, while the main problem with the Charlottetown process was that though it tried to incorporate public opinion and participation, it was poorly managed. There was a marked dearth in focus in the Charlottetown Accord, with no clear relation between the set agenda and its aim of forging an integrated leadership. As Stein says (1997, pg 309) what worked for the Charlottetown process was that they successfully made use of a consultative referendum. It did have glitches in it, with the shortcoming of there being a need for working more closely with set ratification modus operandi.

Would you advocate a different method of achieving these political goals?

I would go for a completely different approach, one that has been revised by reviewing, why the Meech Lake and Charlottetown accords failed to work. Having carried out a comparative study of the shortcomings and strong points of both, coupled with the advantage of hindsight, it is obvious that one thing that was completely lacking was the involvement of the public in the review process. This is an irony since it is to the good of the public that these reformations are aimed. I would endorse the development of a model of amendment where there was a greater public participation.

According to Dunn (2006, pg 219), one of the disadvantages of the closed review process that the Canadian amendments go through is that the opinions given, as has already been shown, are restricted to those of the elite. There is no true universal representation of all classes of people, right down from the grassroots level. So why should it come as a surprise when these amendments are rejected by that same public (Dunn, 2006, pg 220)?

There are already steps being taken towards increasing public participation in the constitution review process. The ‘Act Respecting Constitutional Amendments’, which was passed in 1996, gave Québec a promise on the veto of future constitutional amendments. The primary objective of the act was putting into place terms that there must be approval both regionally and provincially before a cabinet minister could get permission to proceed to table to parliament a resolution to make an amendment to the constitution(Heard & Swartz, 1997).

Though there were objections to this move, the strongest being from British Columbia and Alberta who felt that they were being sidelined by being classified as one region. This was dealt with by designating British Columbia as a region by itself with the stipulation that three Prairie Provinces, together with the greater part of their population, agreed. This effectively gave Alberta its own veto (Heard & Swartz, 1997, pg 156).There is a general distrust in Canada’s constitutional amendment practices and a belief that they are flawed and cannot be relied upon. In my opinion, why this process is not trusted is because the politicians in a closed forum, making the affair seem overly secretive and suspect, carry it out. The public should be given a systematic update on how it is being done.

There is a bleak and resigned attitude taken by the general populace towards the amendment of the constitution, who are not sure whether their interests are genuinely represented when the process is undertaken. As illustrated by Moore (2002), who must be one of the most disenchanted Canadian citizens, the future of constitution reform is considered abjectly dim. Writing in ‘The Beaver’, he says:

‘What Canada has needed for decades is legislative reform, a way to refashion party discipline and to make party leaders once more answerable to the people’s elected representatives. Instead, PR advocates tell us to reform our voting processes – to entrench the authority of parties and party leaders even more securely.’ (Moore, 2002).

His cynicism speaks loudly for itself. Thus, the faith of the public should first be completely restored in the effectiveness, not only of the reform process, but in the capacity of their leaders to deliver as well. One of the ways in which this can be done is by making the public part of the amendment process, contrary to it being a close affair so that the public feels as though it is something being imposed upon them.

In Stein’s opinion (1997, pg 323), one of the major challenges facing the amendment process is that in an attempt to recognize a basic democratic principle where popular sovereignty takes the day, a process that is simple, has been transformed in to an incorrigible political quagmire. He goes ahead to say that from this point, it can be argued that Canada’s amendment process is one that nurtures what he terms constitutional paralysis making the process to creating change a difficult one. This can be overcome by drawing up reformations that are straightforward and graspable, yet workable.

Stein (1997, pg 329), however, is of the opinion that the attitude of Canada’s reforms process being beyond salvage is a little too cynical. He feels that there might actually be an unseen benefit to the otherwise dark cloud of Meech Lake and Charlottetown. He says of the failure of the Meech Lake and Charlottetown Accords that Canada should use them as stepping stones to develop a more operable constitutional review process. He suggests that the benefits of this learning exercise should be put into play while the failure of the two accords is still fresh in memory (Stein, 1997. pg 334).

On a slightly different note , I believe also as does Swinton (1992), that a shift of attention from the issues that have been the causes of disagreement on the matter of constitution reform over the years would be a rest for all involved. There are matters of great importance that have been delegated to a back burner as all energies are concentrated on a few recurring areas. One of the issues that emerged during the time of the Meech Lake and the Charlottetown accords was that of Aboriginal self-government. It has not been given as much thought as that of the sovereignty of Québec though it should be just as important and essential to the nation.

Conclusion

Stein(1997, pg 336) is optimistic about the future of the Canadian constitution review process. A constitution is meant to govern a country; hence, it belongs to the people, because every aspect of it touches on their lives. It is not to be used as a political tool, neither is it meant to be the ground where political bad blood and personal feuds are fought. That is why the amendments made to the constitution cannot be left in the hands of a few select elite.

There may be a long way together before the integration of all the provinces on an equal level is achieved, considering that their demands are often contradictory to each other as they all watch out for their own interests, says Dunn (2003, pg 245), but this does not imply in any way that it cannot be done. Learning from past mistakes, such as the Meech Lake and Charlottetown Accord, which were not mistakes in their own right because of their value in experience, and adoption of more workable approaches like the involvement of the general public in the amendment process to some extent. With the right frame of mind, attitude and policies, a constitution that is embraced by all can be realized.

Works Cited

C. Provinces: Canadian Provincial Politics. Second edition. Toronto University Press, 2006.

Heard C & Swartz T: Regional Veto Formula and its Effect on Canadian Constitution Amendment Process. Canadian Journal of Political Science No. 2 (1997), pp. 154- 198.

McRoberts, K. Misconceiving Canada: The Struggle for National Unity Toronto Oxford University Press, 1997.

Moore, C. Why Fair Voting? – The “Fair Voting” Crusade Takes Wing. Toronto; National Post, 2002.

Rocher.F, Smith M. New Trends in Canadian Federalism Toronto: University Press, 2003.

Russell, Peter H. Constitutional Odyssey. Toronto: Toronto University Press 2008.

Russell, Peter H. Judicial Independence in the Age of Democracy: Critical Perspectives From Around the World. Toronto: University Press, 2005.

Stein M. B. Improving the Process of Constitutional Reform in Canada: Lessons from the Meech Lake and Charlottetown Constitutional Rounds. Canadian Journal of Political Science No. 2 (1997), pp. 307-338.

Swinton, K. Amending the Canadian Constitution: Lessons from Meech Lake. The University of Toronto Law Journal, Vol 42, no.2 pp. 139-169, 1992.

Outline

The paper will begin with an abstract that will give an overview of what the body of the paper highlights. Within the abstract will be the statement of the thesis and the argument.

This will be followed with an introduction. The introduction will relay a brief history of the Canadian constitution, from back when Canada was still a colony of the United Kingdom, to the time of the Statute of Westminster 1931, right up to the events that led to the Canadian Act 1982, naming the parties involved and what role it is that they played.

The term ‘patriation’ will also be explained.

The paper shall then proceed to say briefly what the Meech Lake and Charlottetown Accords concerned. Again, the parties involved and what role it is that they played in the creation of both accords. This will include the agendas for both accords, which revolved around the sharing of power between the provincial and federal governments, the recognition of Québec as a ‘distinct society’, the revision of the federal finance strategy, the role to be played by the provincial governments in the election of supreme court judges and senators and a reorganization of Canada’s political system.

It shall then be noted that both accords were a failure when they were put to public vote, and it shall be reviewed why this was the case.

A comparative and analytical study between the two accords shall then be conducted. This will be done by comparing the processes of both accords at each stage, namely the agenda-setting, elite negotiation and ratification stages, noting the differences ad similarities at every point.

The paper shall then proceed to analyze the strengths and weaknesses of both accords that might have led to their not being successful.

The paper shall then wrap up by reaffirming the thesis statement by suggesting an alternate solution that could facilitate the successful amendment of the constitution, verifying the reasons why it would work.

There shall be included a comprehensive bibliography of the writers cited within the paper.

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