CHAPTER XV

Findings and Conclusions

1. In Chapter 4 of this Report, the Committee discussed its mandate and described the broad range of public opinion that emerged in the course of five and one half weeks of hearings. In line with our view of this mandate we have, in Chapters 5 through 14, examined the 1987 Constitutional Accord in both its broad strokes and its fine detail. We have summarized, as accurately and as fairly as we have been able, the concerns and arguments put before us by the many groups and individuals who presented submissions to us.

2. We now turn to the final portion of our task and to lay out our findings and conclusions. As we explained in Chapter 4, evaluation of the 1987 Constitutional Accord cannot take place in the abstract or in isolation from the historical context in which the negotiations and discussions leading up to the agreements at Meech Lake and at the Langevin Block took place. As has been emphasized throughout this Report, the proposed constitutional amendments that make up the Accord are intended to complete the unfinished constitutional business of 1982 and to secure Quebec's willing assent to the Canadian Constitution as patriated and amended. The text of the Accord is the response agreed upon by Canada's eleven First Ministers to the five proposals put forward by Quebec as the basis for that province resuming its place as a willing partner in Confederation. Born in an atmosphere of pessimism, the Accord was welcomed by many as "the miracle of Meech Lake". It was initially welcomed by the leaders of all parties in the House of Commons as a major achievement in federal­provincial relations. The question before Parliament, and therefore before us in preparing this Report, is not whether a different solution might have been reached or whether other constitutional issues might also have been addressed. It is quite simply whether or not the Accord that has been agreed upon should be adopted or whether any amendments should now be proposed.

3. We can report that the witnesses who appeared before us were virtually unanimous in their agreement that the goal of having Quebec willingly rejoin the Canadian constitutional family was an important and a desirable one.

4. For a number of witnesses, however, despite the desirability of the objective, the actual provisions of the Accord are unacceptable, either in terms of particular provisions or its broad philosophy. For some witnesses, our constitutional history is seen as a history of conflict and confrontation between the national perspective of the federal government and the particular local interests represented by the provinces. They maintained that undue reliance on "cooperative federalism" would be naive, and that the forces of provincial distinctiveness have no positive role to play in the formation or preservation of national values and institutions. They regard themselves as the "realistic" school of federal­provincial relations.

5. We have also reported in some detail on the answers to these assertions that were given to us by members of the public, historians, constitutional experts, former federal Cabinet Ministers and retired senior public servants. We have indicated how they told us that the evolution of the Canadian Constitution does not need to be seen as a battle with winners and losers; that diversity is not necessarily synonymous with weakness or inequality; that decentralization and cooperative federalism is at least as authentic a Canadian theme as centralization and confrontation.

6. It must be acknowledged that both of these opposing views of the Canadian federation are sincerely held and that, as with many items of belief, the question of which view represents the better philosophic understanding of Canada is probably not susceptible to resolution by logical argument or debate. It is a matter of political judgment.

7. The Committee notes, however, that if one is to maintain that the terms of the 1987 Constitutional Accord should not be accepted because they exact too high a price in terms of their vision of Canada, then one must be prepared to accept that at least in the foreseeable future Quebec will remain officially estranged from the Constitution and that a Constitution without Quebec will continue to limp along without the willing participation of one of the key parties to Confederation.

8. The evidence heard by the Committee suggests that the terms of the 1987 Accord reflect a compromise. No one should expect absolute perfection in a compromise. We were also told by a number of witnesses that the provisions of the Accord as it is now constituted are the absolute minimum terms upon which it will be possible to secure agreement among the governments of Canada and the provinces, including Quebec not only now, but into the foreseeable future. While such a conclusion is necessarily speculative, it is a speculation that comes to us from a broad range of sources-- political, bureaucratic, academic, and thoughtful members of the public--and in our judgment it represents a risk to the well­being of this country that has to be taken into account along with other relevant considerations.

9. While opinions differ about the precise way in which some of these amendments if adopted, would operate, nothing has been said to lead us to believe that the basic principles of the Canadian federation would be compromised. On the other hand, to keep the government of Quebec in a continuing state of isolation would lead to the serious practical difficulties outlined in this report. Quebec has indicated that it wants to rejoin what witnesses referred to as "the constitutional family". Equally important, Canadians in other provinces want Quebec back as a full participant at the constitutional table. Dr. Peter Meekison, a long time negotiator for Alberta in federal provincial relations, told us:

I have been involved in this process since 1969 and I know what a significant contribution to the overall debate they can make; to have them sit there and not participate, to me, is a tragedy.
(Meekison, 10:54)

10. We should also say that we agree with those who place the onus on opponents of the Accord to demonstrate negative practical consequences flowing from its adoption. Proponents of the Accord such as Solange Chaput­Rolland have portrayed very convincingly the negative effect were it to be rejected. A widely respected journalist and political commentator, member of the Pépin­Robarts Commission, former member of the Quebec National Assembly and one of the leading campaigners for a "no" vote in the Quebec Referendum on Sovereignty­Association, Madame Chaput­Rolland, gave eloquent testimony about the widely­felt sense of betrayal among those who voted "no" in the Referendum. She recalled with some bitterness what she perceived as the lack of national reconciliation in the aftermath of the Referendum, a lack which was forcefully underlined by the patriation of the Constitution over the opposition of Quebec; the sense of elation that followed the unanimous First Ministers' agreement on the Accord; and her sense of foreboding as to the potential consequences should the Accord now be rejected:

I think none outside Quebec knew the reality of the referendum. I travelled throughout Canada, about a few months after. It was all over, eh? Good. It was not exactly all over. Families against families, towns against towns, fathers and mothers not speaking to their children.

[During the Referendum] we spoke with thousands of Quebeckers. Women wanted to leave to their children a country as big as the one they had received from their father. That was mainly the article that reached the heart, because you are right: in this country if we put a little more heart into what we are doing, maybe we would be aware of the hurt we inflict on others.

And then we came home. We went back to the National Assembly, back to our villages, back to our houses, back to the friends that were no more friends; they were on the "yes", we were on the "no". It was not a picnic, it was not a social gathering, it was not a think­tank, it was a battle between brothers, a dangerous, divisive battle, and we still feel it. It was not 100 years ago, it was seven years ago that we lived that referendum.

English Canada could not care less one month after, and it stung me and it stung all of us who fought so hard to remain in Canada and to find ourselves outside of Canada. You know, it was a very dramatic gesture when Mr. Levesque put the flag of Quebec at half mast on the day you were all celebrating here. But our hearts were at half mast too that day, because we were out of a country we had chosen to remain.

So the Accord of Meech Lake brought us something "incroyable" as a gesture of friendship.

Since the telephone rang at our house and a friend called me from Meech Lake to say "it is done", I have held my head high, believing at least that I did not deceive my compatriots when, with the NON team, we told them "that there would be a place for Quebec in the Canada of tomorrow. There will be room for French­speaking Quebeckers in Canada's federal institutions and the Canadian federation will be rejuvenated"

And I would really like people to know that for us Quebeckers, as for all the others here and everyone else, the Meech Lake accords are not an end, but the beginning of a grand process, I think. But I must tell you that for me it is really the first time that I have felt, YES, I won that referendum.

But surely by now, surely, you all know that if Meech is to fail for whatever reason, there can be no more negotiations, no more justifications. If Quebec is once again to realize that it is more difficult to opt in Canada than to stay out of Canada, then surely, you know that the roads of tomorrow can only lead to another form of independence, but this time not chosen by any political party in Quebec, maybe chosen and imposed on Quebec outside Quebec.
(Chaput­Rolland, 13:19,13:20, 13:10)

11. As we have stressed throughout this report, a fair evaluation of the 1987 Accord must be approached not only with an understanding of the emotions on both sides of the issues, but also with a clear grasp of the practical consequences. In this respect we have listened carefully to the problems seen by opponents of the Accord and we have reviewed in detail in the body of the Report the negative practical consequences that they believe could result. We do not intend here to repeat what has been said on specific issues such as whether or not the proposed arrangements for future national shared­cost programs will compromise existing programs, or make it impossible to ensure universality and portability for future programs, or whether immigration agreements will "drain" some provinces to the benefit of others. We refer the reader back to the individual chapters for an analysis of the wording and of the effect of each of the provisions that make up the Accord.

12. For present purposes it is sufficient to report that the Joint Committee finds that the effects feared by some witnesses do not flow necessarily or even naturally from the text. A number of "worst case" assumptions invariably crept into the discussion and we do not think it appropriate to advocate rejection of the Accord on that account. If "worst case" assumptions were the appropriate criteria one would have to withhold legislative power from the provinces over "property and civil rights" out of fear that it could be used to expropriate all private landholdings, and withhold authority over defence from Parliament on the basis that it could arguably be used to start an offensive war.

13. Nor do we accept that recognition of Canada's linguistic duality and Quebec's distinct society will have the effect of justifying an erosion of bilingualism or Charter rights or lead to a denial of multiculturalism or result in a wholesale transfer of legislative authority from Ottawa to the provincial capitals. The plausibility of such fears was simply not borne out by the evidence.

14. At the same time, representatives of French­speaking Canadians living outside Quebec made out a very strong case that not only should their "presence" be preserved but that the Constitution should affirm the role of all governments to promote linguistic duality in all of the provinces and territories. We believe that this is an important matter that should be put back on the First Ministers' agenda at an early date.

15. A good deal of concern was initially expressed about the future of national shared-cost programs. But as we delved deeper into some of the practical aspects of federal-provincial financial arrangements, and as witnesses came to grips with the rather limited constraints placed on the federal spending power (as discussed in Chapter 7), the controversy appeared largely to diminish. We believe that national shared­cost programs in areas of exclusive provincial jurisdiction can still be negotiated to the benefit of both the federal government and the provinces, and that the major effect of the proposed amendment would be to place a renewed emphasis on negotiation. According to the view of federalism underlying the 1987 Accord, this is as it should be.

16. Granting constitutional status to immigration agreements can scarcely have earthshaking consequences having regard to the fact immigration agreements have been operating successfully for the past 16 years, and that future agreements will come before the Senate and the House of Commons for review and approval before they can acquire constitutional status.

17. In its broad outline, therefore, we believe that the 1987 Constitutional Accord represents a reasonable and workable package of constitutional reforms. Even its firm supporters do not claim more. Gordon Robertson, for example, told us:

With the diversity that is characteristic of Canada and the different interests of the provinces, it is obvious that any arrangement has to be a compromise. No arrangement is going to represent perfection for 11 governments. No one government is going to get perfection according to its judgement because it would not be acceptable to the other 10. So with the knowledge that it has to be a compromise, I think this arrangement is probably as good as can be achieved. One is most unlikely to get anything better.
(Robertson, 3:78)

18. We have kept in mind the advice given to us by Dean John Whyte of Queen's University Law School, who prefaced his lengthy and thoughtful criticism of many aspects of the 1987 Accord with the following test:

Those who continue to oppose the 1987 Accord after it has been accepted and approved by Quebec must realize that they argue not simply against the adoption of certain terms for reconciliation, they argue to undo the historical act of reconciliation and that is a course with clear harmful, long­term consequences for Canada. Therefore, the deficiencies of the Accord must be serious and they must be likely.
(Whyte, 10:71)

We do not believe the critics have met this test, which we believe to be appropriate, that "the deficiencies of the Accord must be serious and they must be likely".

19. At the same time, there are four areas of concern which have been extensively canvassed in our hearings, which point to issues that in our view go beyond the immediate confines of the 1987 Accord but which we think deserve the attention of First Ministers in the near future, namely:

20. All four areas of concern have two important facts in common. First, each raises issues that go well beyond the limited scope of the 1987 Constitutional Accord. In our opinion, rejection of what First Ministers accomplished in their limited agenda in the "Quebec Round" would not solve the real problem for the people involved. Second, accepting that these issues are important and need to be addressed, there is no real consensus amongst members of the public or government leaders about what should be done. That much is obvious from our hearings. Having said this we do believe that some useful observations can be made on each of these issues which reflect on the need to make a serious and determined effort to address these matters in the process of constitutional evolution.

(i) Future Process of Constitutional Change

21. Our limited experience with home­grown constitutional change suggests to us that a Conference of First Ministers will likely always be necessary as the final step to reach agreement on proposed constitutional amendments. The meeting of First Ministers should be preceded by an open consultative process in which elected representatives, interested organizations, professional associations and members of the public would be encouraged to participate.

22. The constitutional work of the First Ministers should take place within an appropriate institutional framework. We have recommended a Standing Joint Committee of the Senate and the House of Commons on Constitutional Reform. The Joint Committee would be expected to create appropriate links with provincial legislative committees sharing a similar mandate. The work of the Joint Committee could be greatly assisted by input and support from the Minister of Justice in consultation with the Attorneys General of the provinces. The Committee should also hold hearings to obtain the views of members of the public as well as constitutional experts and scholars. The recommendations of this Joint Committee would be reported to the First Ministers' Conference.

23. An example of a matter that might be addressed by the proposed Joint Committee at an early date is the concern of multicultural groups referred to in Chapter 5. Some of these groups believe that not enough has been done in the Constitution to recognize the ethnocultural reality of Canada. This deserves further study. The proposed Joint Committee would provide the appropriate forum for such a study, leading to its consideration at an early date by the First Ministers' Conference on the Constitution.

24. We do not, as we have said in Chapters 4 and 14, accept the view put forward by some witnesses that the procedure leading to the 1987 Constitutional Accord was flawed and should be rejected on that account. The procedure was appropriate to the particular exigencies of its special facts, including (i) Quebec's well­publicized "Five Conditions"; (ii) the Edmonton Declaration of provincial premiers in August 1986; (iii) the long history of debate and discussion about such matters as the "distinct society" and the "federal spending power" over many years; (iv) the opportunity for public debate and discussion between the Edmonton Declaration in August 1986 and the Meech Lake meeting at the end of April 1987; and (v) the public participation in hearings both in Ottawa and in some provinces to consider in an objective way whether what was agreed upon by the First Ministers should be accepted as an amendment to the Constitution. In future, without the special facts of the "Quebec Round", it will be possible and in our view highly desirable to adopt an active and open consultative procedure across the country.

(ii) The interaction of the various parts of the Constitution and Charter rights

25. The major issue raised by the women's groups whose testimony we heard, it seems to us, was whether any one part of the Constitution including The Charter of Rights and Freedoms can or ought to take absolute priority over others.

26. Major national women's groups, including the National Association of Women and the Law, Women's Legal Education and Action Fund, and the Ad Hoc Committee of Women on the Constitution, took the position that unless they could be given a guarantee that under no circumstances "could" the linguistic duality/distinct society rules of interpretation have any effect on gender equality rights, then the 1987 Accord should be amended to establish the absolute paramountcy of those rights.

27. Their fear was that using these new rules of interpretation, a court might refuse to invalidate a law despite the fact that it involved gender­based discrimination on the grounds that the law furthered the cause of Canada's linguistic duality or Quebec's distinct society. They wanted, in other words, an affirmation that gender equality rights were absolute, and they did not want to give to the Courts the power or the responsibility of weighing this right against the competing demands of social, historical or cultural facts which the courts might conclude justified some measure of limitation of the right.

28. The Committee sees this position, in essence, as expressing real doubts about the legitimacy of a role for the courts in assessing whether social or cultural facts justify certain limitations on a given Charter right and whether the proposed limitation is reasonable. The Committee also believes that although this position was taken with particular regard to gender equality rights, the argument could equally apply to other Charter rights.

29. Two of the basic principles underlying the entrenchment of the Charter in 1982 were that Charter rights are not absolute and that it should be left to the courts on a case by case basis to decide whether potential limitations of specific Charter rights would nevertheless be "reasonable limits, prescribed by law, demonstrably justifiable in a free and democratic society".

30. Whether these principles are sound ones is an important and much­debated question. It was an issue that created much controversy at the time of entrenchment. While the issue was decided one way in 1982, it might be appropriate to reopen the debate and reconsider the question in the light of the experience Canadians have had in the first five years of the Charter's operation.

31. Are certain values, such as gender equality, so important that in no circumstances should judges place "reasonable limits" upon them? Should attempts to advance communal values like Canada's linguistic duality and Quebec's distinct society always give way if they infringe, however minimally, on Charter rights such as gender equality?

32. On the other hand, two of the major women's groups in Quebec, including La Fédération des Femmes du Québec, told the Committee that they do not share the fears expressed by the national women's groups. The Joint Committee places great weight on the testimony of these Quebec women. They should know better than anyone what the distinct society is all about. They live in it. They constitute about half of its population. They have obviously given careful thought to possible conflict between Charter "equality rights" and the collective interests of the "distinct society" and they have concluded that there is in fact no real potential for conflict. Their opinion in this respect was strongly supported by most of the constitutional experts who made submissions on this point, including Professor William R. Lederman, Professor Gérald Beaudoin and Maftre Yves Fortier.

33. The national women's groups were also concerned about the selectivity of section 16 of the 1987 Constitutional Accord in dealing only with aboriginal and multicultural matters. Many of the constitutional experts that appeared before us testified that section 16 is unnecessary. Certainly it generates more heat than light. Adding section 28 of the Charter to it would accomplish little because section 28 only guarantees equal application to men and women of rights and freedoms referred to elsewhere in the Charter. But reaching into section 15 of the Charter to add gender equality rights to the "protected list" while leaving all other Charter rights "unprotected" would be even more arbitrary. What about religious discrimination? Freedom of expression? Religious freedom? Racial discrimination?

34. Former Prime Minister Pierre Trudeau took the debate one step further and proposed the repeal of section 33 of the Charter which enables Parliament or a provincial legislature to pass a law that overrides important provisions of the Charter including section 2 ("fundamental freedoms") and sections 7 to 15 ("legal rights" and "equality rights") for renewable periods of 5 years. This was a controversial measure at the time it was put into the Constitution in 1982. It should be looked at again.

35. In light of what appear to be significant areas of controversy in the operation and effect of the Charter we recommend that a consultative process be initiated under the direction of the proposed Joint Senate and House of Commons Committee on Constitutional Reform to review the operation of the Charter. If, contrary to our expectations, any difficulties arise as a result of the linguistic duality/distinct society rules of interpretation the problems can and should be dealt with at that time.

(iii) Northern Territories

36. It appears from the evidence that at least some of the provincial governments are overly sensitive to territorial governments' taking on the trappings of provincehood, even in such matters as nominations of qualified men and women for appointment to the Senate and to the Supreme Court of Canada. Insofar as the Supreme Court is concerned, we do not share the concerns of those provinces that opposed territorial nominations for appointments to the Supreme Court. We were informed that their opposition was adamant but we see no reasonable justification for it. In our view the territorial governments should be permitted to nominate qualified judges and lawyers from the territories for appointment to our highest court. We think this provision should be reconsidered and we recommend it be placed on the agenda of First Ministers at their first Conference on Constitutional Affairs in 1988.

37. As explained in Chapter 9, we think it likely that the Governor General can continue to appoint territorial Senators under section 24 of the Constitution Act without provincial participation. It is of course, open to the Prime Minister, before advising the Governor General on the appointment of territorial Senators, to seek nominations from the territorial governments in a manner analagous to the procedure now in place for provincial nomination. We believe such prior consultation with the territorial governments would be desirable and appropriate.

38. The territorial representatives who made submissions at our hearings acknowledged that each of the existing provinces has some legitimate concern about adding to the number of provinces with respect to two matters, namely equalization payments and participation in the amending formula. The territorial governments appear to be willing to concede a unanimity requirement on those two points. But other aspects of provincial status affect only the relationship between the federal government and the territorial governments, e.g. the exercise by a territorial government of "provincial" legislative powers under section 92 of the Constitution Act, 1867. The transfer of power to the territorial governments would take away some authority from the federal government and Parliament but not, it would appear, from any of the provinces.

39. The principle of the "equality of the provinces" is important but in our opinion, it is carried too far if it imposes artificial and unnecessary constraints on the natural evolution and development of the northern third of the land mass of our country.

40. The protection of the legitimate interests of the existing provinces without unfairly prejudicing the development of the North is a matter of considerable constitutional importance. We believe it should be addressed in the steps we have indicated in Chapter 12, namely

We do not believe that the outcome of these discussions would be prejudiced by adoption of the 1987 Constitutional Accord at this time.

(iv) Aboriginal Peoples

41. For reasons set out in Chapter 11, we believe that the aboriginal peoples of Canada are justifiably apprehensive about the lack of progress on constitutional matters that directly affect them.

42. We believe the concerns they expressed about adoption of the 1987 Constitutional Accord reflect their anger and frustration over four largely unsuccessful constitutional conferences in five years. We do not believe, however, that rejection of the 1987 Constitutional Accord is the way to address their concerns. In Chapter 11 we have recommended a series of measures to push ahead the process of constitutional change in matters that directly affect them. In this respect the Joint Committee

43. We believe these measures should galvanize the aboriginal constitutional agenda back into action and we urge the participants to make a thoughtful and realistic re-assessment, in light of the experience of the past four conferences, of what is likely to be acceptable to the other participants. Without significant moderation of some of the positions taken on all sides of the bargaining table we are deeply concerned that the legitimate objectives of aboriginal self­government may never be achieved.

Recommendation

44. The Joint Committee of the Senate and the House of Commons is therefore pleased to recommend to the Senate and the House of Commons adoption of the 1987 Constitutional Accord.


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William F. Maton