CHAPTER XIV

The Process of Constitutional Change

First Ministers' Conferences

1. One of the important themes of recent Canadian constitutional history, as pointed out in Chapter 1 of this Report, has been the emergence of First Ministers Conferences as the engine of constitutional change. The present and future importance of these conferences is underlined in the process of the Meech Lake Accord and in a number of its provisions.

2. The 1987 Accord was arrived at as a result of two lengthy First Ministers Conferences on the Constitution held respectively at Meech Lake and at the Langevin Block. The Accord itself entrenches as section 50 of the Constitution Act, 1982 an annual First Ministers' Conference on the Constitution and specifies that its agenda is to include, as permanent agenda items, consideration of Senate reform; roles and responsibilities in relation to fisheries; and such other matters as are agreed upon. A parallel series of First Ministers' Conferences dealing with the economy is to be entrenched by section 148 of the Constitution Act, 1867.

3. Concern has been expressed about the great emphasis given to First Ministers' Conferences in the 1987 Accord. Negotiating sessions among First Ministers behind closed doors was criticized as an inappropriate method for amending the Constitution of Canada for both theoretical and practical reasons, particularly if the "side agreement" of First Ministers in the "Quebec Round" -- that the text of the Accord would not be modified thereafter except for the correction of what the First Ministers unanimously agreed to be "egregious errors" -- is to be taken as a precedent for future rounds. The entrenchment of First Ministers' Conferences was criticized as another step toward "executive federalism" and as an erosion of parliamentary government.

4. The Joint Committee does not interpret the provisions of the 1987 Accord as requiring First Ministers to follow the Meech Lake process in their future constitutional talks. The "Quebec Round" is limited to its special factors. We therefore wish to consider separately the criticisms of the process followed in the "Quebec Round" and then to move to broader considerations of an appropriate procedure for future constitutional change.

A. Were the Meech Lake and Langevin Block Negotiations an Appropriate Means by which to Negotiate the 1987 Constitutional Amendments?

5. Some of the most colourful language heard by this Committee at its hearings was directed at the way in which the 1987 Accord was reached. Professor Deborah Coyne the University of Toronto described the process as follows:

Eleven men sat around a table trading legislative, judicial and executive powers as engaged in a gentlemanly game of poker.
(Coyne, 14:8)

Other witnesses, such as the Canadian Labour Congress, analogized the negotiations among First Ministers to marathon collective bargaining sessions, and stated that such methods were appropriate for short­term labour contracts, but not for the formulation of constitutional amendments that could bind the country for generations.

6. The basis for the concern of these and other witnesses who commented unfavourably upon the process by which the 1987 amendments were arrived at is that the Constitution is a document of singular symbolic and practical importance. Constitutional amendment, they pointed out, is a delicate process that cries out for a great deal of preparation, consultation and reflection, little of which, they said, was available to the First Ministers in the 1987 negotiations.

7. A related concern focused on the "closed" nature of the negotiating sessions. For some, it was the literal fact that the sessions were closed that was troublesome. They would have wished to open the sessions to the public and to the television cameras. Others, such as Professor Wayne McKay, were concerned that the sessions were "closed" in a different sense:

While I understand the need to meet in closed door sessions with First Ministers to get agreement, I think it is very important on matters as basic as this, where we are basically talking about defining what it is to be Canadian and the nature of the Canadian federation, that there be significant access to all aspects and all segments of the public.

My concern about that is accentuated by the fact that this group is a rather exclusive group, excluding, for example, at the present time, women entirely, and not normally including native people in that group, and certainly, in the most recent round, not including the Yukon and the Northwest Territories.
(McKay, 3:43)

The concern, which was echoed by representatives of women's groups, aboriginal groups and ethnic groups, was that the physical isolation of the First Ministers behind closed doors and their political isolation from direct accountability might lead them to overlook important interests and concerns which might be brought forcibly to their attention in a more "open" process.

8. In assessing the validity of these concerns, it is important to bear in mind singular nature of the "Quebec Round". In a written submission prepared on behalf of 12 distinguished Canadian academics, Professor Ronald Watts listed the following factors which, in their view, blunt the criticism of the Meech Lake process:

The federal Progressive Conservative Party campaigned on the promise to reconcile Quebec to the Canadian constitutional order; the Quebec proposals have been public for more than a year; the Liberal and New Democratic Parties debated the issue at national conventions and passed resolutions fully consistent with the principles in the Accord; all three political parties in the House of Commons have endorsed the Accord.
(Watts submission, para. 5)

9. As a number of witnesses indicated, the Accord was not the result of two all­night bargaining sessions. Its origins extend at least to the "unfinished business" of the patriation of the Constitution in 1982 and the issues it deals with have been the subject of discussion, debate, consultation and preparation for even longer. Senator Lowell Murray was particularly adamant on this point:

Mr. Chairman, it will be grossly injust to say the 1987 Constitutional Accord was a "one­night wonder". The accord was not cooked up in some kitchen overnight, nor was it simply cobbled together during the course of one or two marathon First Minister's meetings. The reality is that a long and complex process of federal-provincial consultations occurred, which was the culmination of often difficult constitutional debates over a period of 20 years. Events arising from the referendum created a historical turning point, making the successful resolution of the Quebec issue possible.
(Murray, 2:14)

10. We believe that the text of the 1987 Constitutional Accord should be judged on its objective merits. The public has made a valuable contribution at these hearings and in other similar hearings around the country. If the 1987 Constitutional Accord is good for Canada, then it should be adopted and all the procedural criticisms should be put aside for consideration of a better way of doing things in the future. If the 1987 Accord is thought to be bad for Canada, then it should be rejected and all the procedural niceties in the world should not save it. In this instance, at least, process should not be allowed to triumph over substance.

B. Was It Appropriate for the First Ministers to Agree Not to Modify the Text of the Accord Except to Correct "Egregious Errors"?

11. The marathon length of the negotiating sessions leading up to the Accord demonstrates the delicacy and the fragility of the agreement that was reached. Dr. Norman Spector, Secretary to the Cabinet for Federal and Provincial Relations, repeatedly used the expression "deal­breaker" in describing various elements of the compromise. Dr. Peter Meekison, a longtime constitutional player for the Alberta government, put the problem in a practical light:

...when an agreement is reached after long and sometimes difficult negotiations, it is usually based on a series of compromises and the recognition that perfection or absolutes may be impossible but acceptable solutions are attainable. To pull on a particular thread could unravel the entire agreement, because the delicate design, so carefully woven, can easily be destroyed.
(Meekison, 10:46)

12. In his opening testimony, Senator Lowell Murray described the 1987 Accord as a seamless web". Other witnesses suggested that some First Ministers may be having second thoughts about some of the provisions and that any suggested modifications, however unrelated to their real concerns, could be used as a pretext to cause the Accord to fall apart.

13. The side agreement not to propose changes in the absence of "egregious error" binding only on First Ministers. It does not bind Parliament or the provincial legislatures. The whole Accord, or any part of it, can be amended or rejected. But practical politics being what they are, it is clear that flexibility after First Ministers have made a decision will always be limited and, therefore, in future the emphasis must be on a more open process before First Ministers meet to discuss constitutional issues.

C. Does the "Constitutionalization" of First Ministers Conferences Erode Parliamentary Government?

14. First Ministers' Conferences have been a fact of political life for many yeas. But until 1982 they were not recognized in the Constitution and had no formal constitutional responsibilities. Like the Cabinet, which is also not mentioned in the Constitution, the First Ministers meetings illustrate the gap that often exists between the formal language of the Constitution and its practical workings. The Constitution Act, 1982 spoke of "a constitutional conference composed of the Prime Minister of Canada and the First Ministers of the provinces" to deal with matters that directly affect the aboriginal people of Canada. Section 49 contemplates a First Ministers meeting prior to April 17, 1997 to review the working of the 1982 amending formula. Now section 50 of the 1987 Constitutional Accord would provide for formal First Ministers' Conferences on an annual basis. This disturbs some witnesses, including former Senator Eugene Forsey:

I've heard too many statements from too many quarters, high and low, suggesting that a constitutional agreement by a First Ministers Conference is now, by convention, and not by law, the final word, as unchangeable as the laws of the Medes and Persians.

Well, acceptance of such a convention will reduce Parliament and the provincial legislatures in relation to constitutional amendments to not much more than echoes. It would be subversive of a parliamentary government. It would establish a new, supreme, sovereign, omniscient, inerrant, infallible power, before which the function of Parliament and the legislatures would be simply to say Roma locuta est: the First Ministers have spoken, let all the earth keep silence before them. (Forsey, 2:103)

15. The constitutional amendments of 1982 and 1987 developed out of a series of federal­provincial meetings that began in the late 1960's. It is interesting to review the Secretary's Report of the Canadian Intergovernment Conference Secretariat dealing with the constitutional meetings between the years 1968­71. It reveals that the vast majority of both the ministerial and official's meetings were held behind closed doors. The Report indicates that after the experience in 1968 and 1969 with televised meetings it became apparent that some advantage could be gained by resorting to closed meetings where it would be possible to pursue more direct and candid discussions with less public pressure. Private discussions and closed meetings became the rule during this period. The results of the in camera sessions were reported to the public at the conclusion of the conferences.

16. It has become the norm for First Ministers to meet for the purpose of discussing various federal­provincial subjects. So­called "executive federalism" thus developed because of the fact that the Prime Minister and the premiers can usually make binding commitments on behalf of their respective governments. Executive federalism of course relies on political party discipline "back home". Critics of this type of federalism are concerned because it seemingly diminishes the role of the legislatures "back home" and raises the role of the Cabinet and political party leaders far beyond what they feel should be the case.

17. It is against this background of experience that constitutional negotiations have taken place both in the lead up to the Constitution Act, 1982 and to the 1987; Constitutional Accord. It became normal practice for constitutional matters to be dealt with by meetings of First Ministers and for the most part behind closed doors. The two major recent attempts at constitutional reform that followed this methodology were largely successful. The first resulted in patriation of the Constitution in 1982 with a Charter of Rights and Freedoms and the 1987 Meech Lake and Langevin meeting resulted in the 1987 Constitutional Accord. In fact, the major disappointment in the constitutional arena in the last few years has been the attempt by the aboriginal people to place aboriginal self­government in the Constitution. These conferences, the last of which was held earlier this year, became media events. There was a great deal of anticipation and high hopes for great achievement prior to each conference and there was a great deal of emphasis placed on the statements made before the television cameras in the public sessions. In retrospect these meetings might have been more successful if they had followed the more traditional closed­door approach to First Ministers' Conferences.

18. However, with the increasing importance of First Ministers' Conferences, it has become essential to define and to develop the role of Parliament in this process. It is clear that Parliament and the legislatures are too large and too cumbersome to participate in negotiations directly. But they can, and should, react and respond to proposals, both before and after First Ministers have had their say. In the negotiations themselves it is obvious that some degree of delegation of negotiating responsibility will have to occur. The obvious and appropriate delegation, in the final analysis, is to the leaders of governments who are themselves elected representatives and who enjoy the confidence of their respective legislatures.

19. We are very mindful of the need expressed in the thoughtful submission presented by the National Anti­Poverty Organization for meaningful public consultation and deliberation prior to First Ministers' Conferences. John Holtby, who appeared before us as a private citizen, pointed out:

Public participation in this process is best done through a parliamentary body. I believe parliamentarians have a public responsibility to be an early influence in the constitutional developmental process, to act as advisers to governments, to teach Canadians what they do not know -- as Gordon Robertson yesterday said, to condition the thinking--and to be the link between the people and the constitutional reform process prior to the First Ministers signing their agreements.
(Holtby, 4:7)

20. Mr. Holtby proposed the establishment of a national joint committee on constitutional amendments composed of two Senators, four Members of the House of Commons, and two members from each provincial and territorial assembly, with the same powers as any parliamentary committee to conduct hearings and to report to its assemblies. It is beyond the mandate of this Committee to assess and report on the specifics of Mr. Holtby's proposal, but we do agree that at least a Joint Committee of the Senate and House of Commons, whether joined by representatives of provincial legislatures or not, would help to meet the concerns of such groups as the National Anti­Poverty Organization and Alliance Québec that First Ministers' Conferences preceded by consultation and public input. Such a committee would be expected to meet prior to First Ministers' Conferences, hold public hearings and make recommendations to the First Ministers. Such a committee would help meet the basic objective involving all Members of Parliament as full and active participants in the constitutional evolution of Canada. Moreover, such a committee would orchestrate a level of public involvement in the constitutional process that is vitally necessary to confer legitimacy on constitutional change. We therefore recommend the establishment of a Standing Joint Committee on Constitutional Reform.

THE AGENDA FOR FUTURE FIRST MINISTERS CONFERENCES

21. Section 13 of the Accord would not only entrench yearly First Ministers' Conferences on the Constitution, it would also "constitutionalize" the following items for the agenda of such conferences:

22. Most witnesses support these conferences occurring on a regular basis with their agenda items known well in advance. But others expressed concern that these conferences could go on forever and that there should be a cut­off date after approximately ten years if no agreement can be reached on a particular item.

23. We discussed in chapter 9 the prospects for Senate reform. We turn there Items B and C on the agenda of future First Ministers' Conferences on the Constitution.

A. "Roles and Responsibilities in Relation to Fisheries"

24. Pursuant to section 91(12) of the Constitution Act, 1867, seacoast and inland fisheries are matters within the exclusive legislative jurisdiction of the Parliament of Canada. At five First Ministers' Conferences between 1978 and 1985, the subject of fisheries has been an agenda item, with discussion on the possibility of transforming this subject to an area of shared jurisdiction or of arriving at some agreement for a consultative mechanism between the federal and provincial governments. Several witnesses who appeared before us expressed surprise and displeasure that fisheries now (apparently) become a permanent agenda item at future First Ministers' Conferences on the Constitution.

25. According to the Fisheries Council of Canada, an annual political forum on this subject could simply perpetuate domestic conflicts and undermine the efforts of those who have worked toward developing a unified, internationally competitive industry. The Seafood Producers Association of Nova Scotia argued forcefully against any change in the current allocation of responsibility respecting fisheries, and stated that the so­called fisheries clause in the Accord implied a political momentum that made such changes possible if not inevitable. They said that it would introduce instability and uncertainty into an industry that requires predictability in order to allow for long­range planning and investment. Most witnesses who opposed any change in the present division of powers with regard to fisheries were not averse to having the matter raised at a First Ministers' Conference, but rather objected to having it on the agenda of every First Ministers' Conference on the Constitution.

26. However, simply to place an issue on the agenda is not tantamount to having it actually discussed, nor does it presuppose reaching any agreement. The agenda item is not "jurisdiction over fisheries", but rather "roles and responsibilities with regard to fisheries" which is a much larger and wider subject that could result in federal-provincial agreements or other cooperative arrangements benefiting all fishermen without disadvantaging any of them.

B. "Such Other Matters as are Agreed Upon"

27. One of the recurrent themes of this Report has been that the success of the "Quebec Round" was due to some extent to the fact that the agenda for the 1987 Constitutional Accord was intentionally limited by the provincial premiers in their Edmonton Declaration to Quebec's five conditions. Omission of worthy items from the 1987 Constitutional Accord is therefore not to be taken as proof that issues not dealt with have been ignored, rejected or deemed unimportant. The submissions that we have been privileged to hear over the past six weeks have made it clear that Senate Reform, aboriginal rights, devolution of power to the territories, multiculturalism, the extension and protection of linguistic rights, and the enhancement and further protection of individual rights within the Charter are all matters of the utmost concern that must now be addressed by the First Ministers.

28. Clause C of proposed s. 50(2) of the Constitution Act, 1982 provides that the agenda for First Ministers' Conferences on the Constitution is to include "such other matters as are agreed upon". Does the inclusion of an item require the unanimous agreement of all the First Ministers? That appears to be a lawyer's question of little practical importance. If a substantial number of participants wish an item to be discussed, we believe that it will be discussed. If there is no substantial support for an agenda item, then discussion of it would not likely serve any useful purpose.

29. We have recommended establishing a Standing Joint Committee of the Senate and the House of Commons on Constitutional Reform. We would hope that, as part of the ratification process of the 1987 Accord, such a Joint Committee will be established on a permanent basis and that its ongoing proceedings and deliberations will play a significant role in the determination of the agenda for future First Ministers Conferences on the Constitution.


Last HTML revision: 12 May, 1996

William F. Maton