CHAPTER II

An Overview of the Accord

1. The Constitution is not merely a dry collection of tabulated legalisms. It gives order to our national institutions. In legal terms, it ordains which level of government can do what and to whom and in what circumstances. But it is also more than that. As Professor Maxwell Cohen has observed, "it is the revered script in our national passion play". Ordinarily, talk of family reconciliation in connection with a constitutional impasse between governments would sound somewhat theatrical, but the 1987 Constitutional Accord has been presented to the Joint Committee as a means of bringing Quebec "back into the constitutional family". It is not only the federal government that has presented the 1987 Constitutional Accord to us in this light. The Joint Committee has heard many Canadians from all regions of the country, but especially from Quebec, who have urged acceptance of the 1987 Accord as a means of national reconciliation and as a way for Canada to put behind it the trauma of the 1980 Quebec Referendum and the subsequent isolation of Quebec during the 198182 patriation process. It is time, they say, to get on with other things; but first we must deal with Quebec's outstanding grievances.

2. The Joint Committee would not fulfil its mandate to report fully on our proceedings were we simply to pass on the diverse opinions of lawyers and politicians but fail to underline the moments of high emotion on both sides of the issue expressed at times during the testimony.

3. Madame Solange Chaput-Rolland, a leading participant in the Task Force on Canadian Unity (1977-79) and a member of the Order of Canada, described her emotions to the Joint Committee in these words:

Inside Quebec, seven years ago, we decided that Canada was our country. We have yet to find out whether our loyalty was well placed. Frankly, in 1982 I wondered if the agonies, the pains, the quarrels, the bitterness following the referendum had been necessary. We voted for Canada; Canada through its central government totally absorbed in its will to patriate the British North America Act of 1867, cared very little about those who had openly stated their will to remain linked to this country. Promises and dreams were shattered; not a single Québécois will want to go through such emotions again. You English-speaking Canadians have asked during years; what does Quebec want. Now you know. It has been described in five proposals not written by constitutionalists, jurists or nationalists; but by men duly elected by "we the people"...
(Submission, p. 6)

4. Other witnesses felt that these emotions, genuine and strongly held though they are, put unfair pressure on other Canadians to accept the Accord without proper scrutiny. They did not wish their opposition to particular terms of the 1987 Accord to be misrepresented as being "anti-Quebec". However, they said, talk of "bringing Quebec back into the Constitution" was inappropriate. Indeed National Chief Georges Erasmus of the Assembly of First Nations characterized it as "nonsense":

Quebec never left Canada. Our Prime Minister comes from Quebec. Let us quit this nonsense about Quebec entering Canada and Confederation. It never left. It could not. It is all political nonsense. Constitutionally and legally it was here.
(Erasmus, 9:66)

We are therefore conscious of the deep emotions generated on both sides of this debate and we approach our task of analyzing the merits of the issues in the full knowledge that this is no arid academic exercise, but the collision of strong and passionate views about what is best for the future of Canada.

5. While Chief Erasmus is correct in a formal or legal sense, many witnesses, including lawyers, emphasized to us the difference between legality and legitimacy. Yves Fortier, Q.C., a Montreal barrister and former President of the Canadian Bar Association, told us that any consideration of the 1987 Accord should not isolate consideration of its terms from the objective that it was intended to accomplish:

I believe that the 1987 Constitutional Accord must be analyzed in light of its essential objective of bringing Quebec back into the Canadian constitutional family. I see 1982 as a key date in Canada's constitutional history. That is when our Constitution was patriated, an amending formula adopted and, particularly, the Canadian Charter °S Rights and Freedoms enshrined in our Constitution. Despite their importance, the achievements of 1982 are so far incomplete because my province, Quebec, is not part of the new constitutional order. From a strictly legal point of view, of course, the 1982 Constitution Act applies to Quebec. But in this area, as in many others, lawyers must show some modesty. The fact is that politically, and even morally, the 1982 Constitution Act does not apply to Quebec. Those who claim it does are guilty of constitutional heresy. (Fortier, 12:81 )

6. Extracts of Hansard filed with the Joint Committee confirm, of course, that promises were made by the federal government in the aftermath of the 1980 Quebec Referendum. On May 21, 1980, then Prime Minister Pierre Elliott Trudeau rose in the House of Commons to call the country to action on the matter of constitutional renewal:

It marks a new beginning. It heralds a period of healing and rebuilding. By voting for Canada the people of Quebec have recognized that their fellow Canadians are prepared to listen to them, to understand them, and to meet their legitimate aspirations.

... Those (Quebec) voters said no because they put their confidence in Canada. They said no because they accepted the assurances from Mr. Ryan of the Liberal Party of Quebec, and from the other federalist groups in that province. They accepted the assurances from the premiers of the other regions of the country, from the Leader of the Official Opposition, from the Leader of the New Democratic Party, from all my colleagues in the Liberal Party of Canada and from myself that changes were not only possible within confederation but that the rejection of the option advocated by the Parti Québécois would take us out of the dead end and allow us at last to renew our political system. (Hansard, May 21, 1980, p. 1263)

7. The 1987 Constitutional Accord is presented to this Joint Committee by the federal government as part of the renewal promised in Mr. Trudeau's referendum speech, albeit it is not constitutional renewal in a form that Mr. Trudeau envisaged or that today he accepts as appropriate.

8. In the course of the 1980 Quebec Referendum campaign, the people of Quebec were promised that constitutional change would go forward on two levels: first, the linguistic and educational rights of individuals would be expanded and entrenched in the Constitution. This was accomplished by the Constitution Act, 1982. Second, the role of the provincial government in maintaining and strengthening the distinct identity of Quebec in the North American "sea of English-speaking peoples"--in other words, the ability of Quebec people to act collectively in matters touching language and culture through their provincial government--would be reexamined and, where appropriate, reformed. This second level of renewal was not addressed in the Constitution Act, 1982. On the contrary, the adoption of the patriation resolution by all other governments in Canada, despite the position taken by every member of the Quebec National Assembly as expressed repeatedly and unequivocally, was taken to be a denial on the part of other governments in Canada of the legitimacy of such a role for the Quebec government. On this point, the Honourable J.W. Pickersgill, a former Liberal Cabinet Minister, told the Joint Committee:

It left a wound and a grievance. Not only that, but it did something that had never been done before; it reduced the powers of the legislature of Quebec, as it reduced the powers of all the other legislatures and of the Parliament of Canada with the Charter of Rights. This was really taking away from the plenitude, the sovereignty, of our Parliament and our legislatures, and doing it without the consent of all of them. To me, that was really a very serious situation. (Pickersgill 10:123)

9. In view of the sovereignty objectives of the Parti québécois government, its isolation on this issue was understandable: "an unfortunate necessity" as Professor Lederman described it (Lederman, 7:29). However, the election of the Liberal government of Robert Bourassa on December 2, 1985, made possible serious and realistic negotiations with a view to securing the Quebec government's "willing assent" to the Constitution of Canada. The question before the Joint Committee is whether the 1987 Constitutional Accord, having regard both to its terms and to the circumstances that gave birth to it, is good for all of Canada.

10. In light of this background it is convenient to group together in seven major areas the provisions of the 1987 Constitutional Accord:


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William F. Maton