CHAPTER III

Some Basic Constitutional Principles

1. Before examining the details of the 1987 Constitutional Accord on a clause by clause basis, it is convenient to ask ourselves a number of threshold questions about the nature of our constitutional arrangements, and the values they reflect, and to keep these more general questions in mind as we descend into the detail of the Accord itself. This is because some witnesses were concerned not so much with individual provisions as with the philosophy of Confederation that the Accord, taken as a whole, seems to represent.

In general terms, these philosophical questions relate to the respective roles and responsibilities of the federal government and the provincial governments in the formation, preservation and enhancement of national values, identities and institutions. For example, in matters of national importance should Canadians deal only with the federal government or is there a role for the provinces in matters having a national dimension either as intermediaries or as partners? This is the golden thread that runs through some basic questions, such as those following, that were repeatedly raised by witnesses before the Committee in discussing the "implications" of the 1987 Accord:

2. Our answer to these and similar questions will emerge throughout the Report and especially in the concluding chapter of this Report. At the moment, however, it is important to make some preliminary observations about these questions in terms of the submissions that we have heard.

Question 1: Is the 1987 Constitutional Accord consistent with the basic structure and values of the Canadian Constitution or is it a package of provincially oriented amendments that will stand the constitution on its head?

3. It is fashionable to analyze Canadian federalism in terms of "pendulum" swings between greater centralization during some periods and greater decentralization at other times. There was considerable talk about "the original spirit of 1867". Former Liberal Cabinet Minister Eric Kierans told the Joint Committee:

Meech Lake is not new. It is simply the closest that we have come to following the original intent and meaning of the British North America Act since Confederation itself. It reflects more accurately the view of what the original Fathers of Confederation thought that they were agreeing to a Confederation. They lived with each other, quarrelled and wrangled in debates, assemblies and conferences for years. They knew what was possible and what the different colonies could accept. They never intended that the provinces should be as dependent as they, in fact became. Above all else, they knew that a centralized Canada would not work.
(Submission, p.4)

4. However, witnesses who opposed the Accord also relied upon "the original spirit" of 1867, reflected, they said, in the strong legislative and executive powers of the federal government, particularly the residual power in relation to "the Peace, Order and Good Government of Canada".

5. One could be forgiven, perhaps, for concluding that in 1867 there were as many "original intents" about the desirable shape and structure of Canada as there were Fathers of Confederation. The question for decision is not so much what is historically "correct" but what approach is right for now and the future.

6. A unifying theme of the 1987 Constitutional Accord is its recognition of the importance of the provinces. It makes explicit the role of the provincial governments as well as that of the federal government to preserve our "linguistic duality", and the role of Quebec to protect and promote the "distinct identity" of that province. Moreover, as Senator Lowell Murray told the Joint Committee, the 1987 Constitutional Accord accepts the legitimacy of provincial governments furthering regional views at the national level, both directly and through participation in appointments to such national institutions such as the Senate and the Supreme Court of Canada. Real progress in dealing with the national agenda, we were told, is likely to be made only on the basis of federalprovincial consultation. Confrontation is not inherent in relations between different levels of government. Cooperation is to be the engine of national development.

7. The legitimacy of provincial governments as a source of regional "patriotism" and as a participant, through the appointment procedure concerning the legislative (Senate) and judicial (Supreme Court of Canada) functions, at the national level was wholly rejected by former Prime Minister Pierre Trudeau. In his view, the role of the federal government is to act in its sphere of responsibility without reliance on the provincial governments. The object of the federation is to foster Canadian patriotism, not regional patriotism. He believes that the rights of the individual are better protected by the Canadian Charter of Rights and Freedoms than by provincial governments or, for that matter, by the federal government. The job of the provincial governments is to deal with matters of a local nature within the province.

8. Professor Edward McWhinney of Simon Fraser University told the Joint Committee that Mr. Trudeau's view of federalism was right for the 70's and early 80's, but that the time had come to move on to a more flexible view of confederation. Divisive forces of separation have abated: acceptance of the "distinct society" is a concept, in Professor McWhinney's view, whose time has come. Some witnesses emphasized that different times require different approaches. Few would argue for decentralization in time of war or national emergency. Professor Ronald Watts of Queen's University observed that excessive centralization can lead "to anemia in the extremities and apoplexy at the centre". (Watts, 13:61)

9. There is no doubt that the 1987 Constitutional Accord reflects a more decentralized view of Canada than does the Constitution Act, 1982. It addresses the five conditions set out by the government of Quebec as essential to its willing assent to the Constitution. None of these five conditions address directly the rights of individuals. Rather, the "Quebec Round" was about adjustments in the rights and powers of governments and acceptance of a measure of institutional reliance on federal-provincial cooperation.

10. But all the centralizing forces in the Constitution Acts of 1867 and 1982 remain. Of course, they will now have to be interpreted in light of the "linguistic duality/distinct society" clause, but the Accord expressly provides that nothing in that clause "derogates from the powers, rights or privileges of Parliament or the Government of Canada or of the governments or legislatures of the provinces". As Gordon Robertson, former Clerk of the Privy Council during part of the Trudeau government, told us:

Another question is whether the argument weakens the federal government in any significant and important way. Here one has to note that the accord does not change the distribution of powers in any way; nothing is changed in sections 91, 92 and 93.

During the constitutional negotiations in 1968 to 1971 and later up to 1979, it was fully expected that there would be changes in the distribution of powers. Quebec sought a number of changes in the distribution of powers. This accord does not change that distribution in any way.
(Robertson, 3:77)

11. In the view of many witnesses, therefore, the enhanced role for provincial governments contemplated by the 1987 Accord simply strengthens the counterweight to central power in a way that is desirable for economic as well as political balance. Mr. Eric Kierans addressed this point:

Economic integration creates heartlands and heartlands create peripheries which no level of regional, economic development assistance can reverse. The centre becomes strong and affluent, able to buy off some measure of material frustration and poverty by equalization payments and transfers. With the transfers grow the dependence, vulnerability and helplessness of the outer regions, a deterioration that expands with time. To block the drain of skills, and material resources requires a return of political power to the provinces so that regional interests and goals arising out of particular aspirations, culture, history, language and geography may be pursued responsibly and effectively. It is only in devolution that local initiatives, effort and choices will find expression...
(Submission, p. 16)

12. Many witnesses believed the Constitution Act, 1982 and the 1987 Constitutional Accord to be complementary. The 1982 initiative stressed national values (the Charter) and the need to sever our residual colonial links to Britain, while the 1987 Accord reaches into our domestic arrangements to strengthen the voice of the provinces at the national level. As Professor Richard Simeon of Queen's University put it:

I think 1982 and 1987 together represent a kind of blending and compromise among a very complex set of values and competing conceptions about what defines the Canadian political community.

In a sense that is a problem we have had throughout all our history, the conceptions or the conflicts between the view of the rights of individuals and the concerns of communities, between seeing Canada as a partnership between two great language groups and seeing it as a society of many ethnic and linguistic groups. There is a conception of linguistic duality, which sees English and French-speaking Canadians as present in all parts of Canada and a conception of duality that recognizes Quebec as the home of the great majority of French-speaking Canadians, and therefore, a distinct and different society within Canada.

There is the desire for a strong central government able to define and implement objectives that all Canadians share, and the virtues of strong dynamic provinces, each responsive to local communities, each able to experiment and innovate. Indeed, there is a view of nation building on the one hand as the creation of a single, unified national Canadian community, expressed ultimately through the federal government, and a view of nation building more, I think, in the Laurier tradition, which sees our national strength as building on rather than setting aside strong provincial communities.
(Simeon, 5:67)

It seems to me that these often competing values and conceptions are all legitimate and fundamental parts of our Canadian political reality and a Constitution must, therefore, represent a blending and a balancing among them.
(Simeon, 5:68)

13. A preliminary response to the first question we have posed, therefore, is that the 1987 Accord does not so much "stand the Constitution on its head" as it attempts to put the country back on its feet by restoring a more "traditional" political balance between central power and provincial power. Whether or not it achieves this objective is of course a different question which we address in later chapters of this Report.

Question 2: If Quebec is legally bound by the Constitution Act, 1982, what does it mean (if anything) when First Ministers claim that the 1987 Accord is intended "to bring Quebec back into the Canadian constitutional family"?

14. The process leading to adoption of the Constitution Act, 1982, and the estrangement of the government of Quebec, has to be understood, of course, in light of the sovereignty objectives of the then Parti québécois government. The result, however, was that in response to what it regarded as the imposition of a foreign constitution through duplicitous conduct on the part of other provincial governments, the Parti québécois and Premier René Levesque adopted a negative stance designed to thwart the Constitution Act, 1982:

15. Many of these same policies were continued by the Liberal government of Robert Bourassa after its election on December 5, 1985. As we noted in Chapter 2, Quebec was legally bound by the Constitution Act, 1982. On the other hand, Gordon Robertson, a former Clerk of the Privy Council, told us: "That is a legal fact but it is unimportant" (Robertson, 3:76). A law that is perceived to be unjust generates resistance and resentment. This is true whether the provisions considered unfair are found on the statute books or in the Constitution itself. Professor Lederman put it this way:

Everybody knows that in the technical, legal sense, it (the Constitution) is in force in Quebec. But that is not good enough, particularly for a constitutional document. We always have to be renewing our beliefs in and our allegiance to our constitutional principles. A bare, technical legality is not good enough.
(Lederman, 7:30)

16. Most of the witnesses who appeared before us agreed that the legitimacy of a constitution rests on the willing assent of the governed. Opinions differed about the extent of popular support in Quebec for the Quebec government's continuing opposition to the Constitution Act, 1982. Mr. Trudeau told us that only two to four or "maybe three" per cent of the Quebec people still regard constitutional change as important.

17. Nevertheless, the historical fact is that the Constitution Act, 1982 was imposed on the government of Quebec against the opposition of its legislative assembly. The imposition included a Charter which limits the authority of provincial governments as well as that of the federal government. Nothing had been done since 1982 to effectively heal the wound that, rightly or wrongly, occurred at that time. These facts have inevitably left a dark cloud over the Canadian confederation. It would not be blown away by reliance on legal formalism.

Question 3: Should Canada say no to any changes to the Constitution that confer a different role on any provincial government, including that of Quebec? Does a special role for Quebec mean special powers that undermine the principle of equality of the provinces said to be fundamental to the Constitution?

18. Former Prime Minister Pierre Trudeau predicted that the 1987 Accord would have a profound effect on divisions in the country:

... has it ever struck you that a lot of Canadians prefer the kind of Canada that some Quebec politicians prefer, in which Quebec will be French, Canada will be English and we will all be friends. That is what Mr. Levesque used to be preaching: You speak English in your provinces and we will speak French in ours -- this stuff of bilingualism was a noble dream.
(Trudeau 14: 144)

19. Robert L. Stanfield, a supporter of the 1987 Accord, regarded such fears as being without foundation:

Those who see these provisions in the Accord as a slippery slope towards two nations, a concept I have never advocated, and which I would oppose, should just pull the bed clothes over their heads and try to get a good night's sleep. That bogey man will not get them.
(Stanfield submission, p.6)

20. Professor Gérald Beaudoin, University of Ottawa Law School, pointed out that the "distinct society" interpretation rule confers no new powers on the Quebec government:

In my opinion, (the Quebec National Assembly) has a role within the boundaries that have already been set, not an additional role. It has been told to promote bilingualism, to promote the concept of a distinct society. But this does not change sections 91 and 92. It has to promote these things, but within the scope established in sections 91 and 92; that is what we forget to mention.
(Beaudoin, 2:68)

21. It is true, ofcourse, that the 1987 Accord "affirms" for the first time an explicit constitutional role for Quebec to preserve and promote its "distinct identity" using the constitutional powers that it already possesses, but Professor Wayne MacKay of Dalhousie Law School rejected the argument that this represented a significant departure from the basic principles of the Canadian federation:

The equality of the provinces constitutionally recognized is an important point and part of the positive vision that is identified in the Meech Lake accord. It is true that there is some retreat from that principle in the distinct society clause in respect to Quebec, since there is an element of saying some are more equal than others, but I personally think that is justified given the unique position of Quebec and I do not see that as a significant subtraction.
(MacKay, 3:45)

22. In the course of our Report we shall examine in detail what the 1987 Constitutional Accord does and what it does not do. Suffice it to say at this stage that we share neither the apocalyptic vision of some of its opponents, nor do we accept the bland assurance of some witnesses who have damned it with faint praise as a "do nothing" amendment. We believe the amendments are meaningful. But in our view any degree of asymmetry in the Constitution brought about by the "linguistic duality/distinct society" interpretation rule and the other changes can be accommodated within the Constitution without significantly jeopardizing the "equality of the provinces" or otherwise creating a "special status" for Quebec to the detriment of Canada.

Question 4: Canada needs to foster national values (like the Canadian Charter of Rights and Freedoms). Does the "linguistic duality/distinct society" rule of interpretation encourage "provincial patriotism" at the expense of national patriotism, and if so, in the long run will this undermine the unity of Canada?

23. The Joint Committee fully acknowledges the crucial importance of national symbols (e.g. the flag) and national values (e.g. the Charter). At the same time, we do not share the assumption of some witnesses that "national patriotism" and "provincial patriotism" are mutually exclusive. Dean John Whyte of Queen's University Law School put his case against the 1987 Constitutional Accord this way:

... The national will cannot be the aggregation of political choices made by units, the sub-state units, the units in society. It is not true that we have a nation when what the nation declares for itself is defined simply by virtue of what its various component parts allow to be defined.

For Canada as a federal state, the national will requires the expression of both Parliament and the provinces. But if we think that the expression of the people through provinces requires all-provincial participation, we are not living as a nation at all; we are living as an aggregation of political units. Sovereignty is not in Canada; Canada only reflects a sovereignty expressed elsewhere in other forms, in other places.
(Whyte, 10:59,60)

24. We approach our assessment of the 1987 Accord on the premise, which we know from our own experience to be true, that one can be a strong Albertan as well as a patriotic Canadian, and the same is true of the inhabitants of every region and province in the country. To deny regional values, regional "patriotism" if you will, amounts to artificial suppression of a perfectly natural state of affairs.

25. Canada is a pluralistic state that cherishes important symbols at all levels,-- locally, regionally and nationally. Every locality and region has its special values. Some of these values are expressed through local and regional governments. National values are expressed through the national government. Nothing in the 1987 Accord requires these values to operate in competition with each other in a new or undesirable way. Mr. Eric Kierans even invoked Aristotle as authority for this view of federalism:

Clearly we are a plural society, geographically, culturally and linguistically. Plural means more than one and while there is a need for unity in some matters there will be a desire for autonomy in many others. This is the problem of politics that will continue throughout history. The Greek city-states failed to solve it as they argued the merits of communitas communitatum (community of communities) and what Aristotle described as the mindless conformity of Plato's unitary state. This is what makes politics an art, the art of living together in changing times and circumstances. Meech Lake is that adaptation.
(Submission, p.2)

On this view of the matter, national unity cannot be purchased at the price of being blind to regional diversity, and the need to allow that regional diversity to be given cultural expression through local and regional governments if that is what the people want. The constitution is supposed to be the servant of the people, not their master.

Question 5: Are not national institutions such as the Senate and the Supreme Court of Canada the sole responsibility of the federal government? Is it appropriate for a province to depart from their sphere of local responsibility to participate in nominations at the national level? Will the result be to subject vital national institutions to provincial control?

26. Institutions with a national mandate are not necessarily the property of the federal government. The Supreme Court of Canada, for example, is the "umpire of Confederation" and it has always appeared anomalous to some court observers that one of the leading litigants in the Court, the federal government, has the exclusive right to select the umpires. Mr. Trudeau, in his submission to the Joint Committee, did not dispute this:

... I recognized that it made no sense for the Supreme Court, the supreme arbitor among the parties, to be the exclusive responsibility of the federal government. Mr. Duguay made reference to this a while ago. A way must be found to avoid having the provinces feel that this is a court appointed and set up without their involvement. In Victoria, I made the proposal mentioned by Mr. Duguay. I agreed with it.
(Trudeau,14: 139)

27. Nor is the Senate exclusively a matter of concern to the federal government. In the late 1970's the Trudeau government moved to reform the Senate without the participation of the provinces on the theory that changes in the Senate were none of the provinces' business. This position was rejected by the Supreme Court of Canada in Reference Regarding Legislative Authority of Parliament to Alter or Replace the Senate (1979) 102 DLR (3d)1. The Court pointed out at p. 18 of the reported judgment:

It is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process. The character of the Senate was determined by the British Parliament in response to the proposals submitted by the three provinces in order to meet the requirement of the proposed federal system.

28. Provincial participation in the nominating process for Senators and Supreme Court judges was opposed by former Prime Minister Trudeau on the basis that the federal government answers to individual Canadians not provincial governments, and that to enhance the role of provincial governments in national institutions wrongly suggests that Canada is simply the sum of its provincial parts.

On the other hand, the Committee was told by Professor Ronald Watts of Queen's University, a specialist in comparative federalism, that it is the practice in other federal states, such as Australia and the Federal Republic of Germany, for the equivalent of our provincial governments to have a say in nominations to their highest constitutional court and to the Upper House. He noted that regional representation (though not provincial government nomination) was a key element in the original design of the Canadian Senate.

29. From provincial participation in the nominating process, former Prime Minister Pierre Trudeau drew a broad significance that, in his eyes, condemns the 1987 Constitutional Accord. He said:

They undermine and eat away at our Canadian sovereignty, in a way, by submitting these three fundamental arms or divisions of the modern state to a kind of remote control by the provinces. Finally, in the case of the legislature, our Canadian Parliament is of course made up of two legislative bodies, the Senate and the House of Commons, the House of Commons being an elected body, and the Senate one, up until now, appointed by the federal government. Henceforth, members of the Senate will have to have been nominated by the provinces. In other words, the national government, our Canadian state, loses its ability to choose those who will sit in one of our legislative chambers, both of which, as we well know, are absolutely essential for the passage of all legislation. A veto by the Senate, commandeered by the provinces, which, in a way, are assured the loyalty of their senators, would be enough to ensure that no federal legislation could be passed.

The mechanism for the Supreme Court is the same; only those nominated by the provinces will be appointed to that body. So, once again, provincial governments will be exercising remote control over a body which, thus far, has been entirely the responsibility of the federal government; the Accord transfers that aspect of federal sovereign power to the provinces.
(Trudeau, 14:117)

30. However, the Committee also heard from Professor McWhinney that Mr. Trudeau's vision represents a "fortress Ottawa" mentality that no longer corresponds to the reality of Canada and provides an unsafe guide to the future:

Mr. Trudeau, as a Prime Minister, was much more pragmatic in his policies than the public utterances recently, I think, might suggest. I would also suggest to you that... the same truth ten years ago is not necessarily the truth of today. The centralizing imperative that Mr. Trudeau reacted to, the feeling that he had to build a strong fortress, Ottawa; that he had to stamp on what he felt were dissident separatist forces, represented a truth of 10 years ago, or 15 years ago. I would have said today, though that the very success of Mr. Trudeau in building a strong central government, in consolidating McKenzie King and St. Laurent, Pearson and others... is one of the things that facilitates our moving on to the next stage.

I do not think you have to be afraid today of Canada splitting up. I thought the Quebec referendum was an exercise in participatory democracy...

And the vote was taken and the result was categorical, a page in history is turned. And a great deal of the credit for that goes to Mr. Trudeau, as Prime Minister.

But the reality today is the society is different. We are moving on to other things. You do not need this fortress mentality in Ottawa anymore.
(McWhinney, 15:71-72)

31. Be that as it may, our assessment of the submissions of the many constitutional experts who appeared before us is that there seems to be no fundamental constitutional principle that would be compromised by allowing provinces to submit nominations to either institution for the consideration of the federal government and limiting the federal government's appointments to the men and women so nominated. Whether the particular mechanism adopted for this purpose in the 1987 Accord is appropriate or workable is considered in Chapter 8 (the Supreme Court of Canada) and Chapter 9 (the Senate).

Question 6: The 1987 Constitutional Accord did great things for the provinces but what did Canada get out of it?

32. An important gain for Canada, in the view of many witnesses, would be the acceptance of constitutional recognition of linguistic duality as a fundamental characteristic of Canada by all governments from Newfoundland to British Columbia. Another important gain would be that the federation would be back together in spirit as well as tied together by law. The very fact this question is posed, however, assumes that federal-provincial relations is a game of winners and losers. Professor Ronald Watts of Queen's University was strongly critical of the assumption, characterizing it as a Canadian peculiarity. In most federations, he said, the different levels of government see their relationship as one where everybody wins through intelligent cooperation.

33. Senator Lowell Murray justified the federal government's position on the following basis:

I have also heard it said that the federal government gained nothing in these negotiations and that it gave but did not get. I reject these contentions totally. Canada is the clear and undisputed winner in the current round of constitutional negotiations. The strengthening of our country, the reconciliation of Quebec, opportunities for economic policy coordination and future constitutional reform are all significant gains as a result of the present round of constitutional negotiations.
(Murray, 2:10)

34. In a sense, the question itself is no longer relevant. The 1987 Accord is signed. It has been approved by the Quebec National Assembly. The question now is whether it will be adopted or rejected. As Laurent Picard, former President of the Canadian Broadcasting Corporation, told us:

The choice is not between what you have and what you might have, but between what you have and what you will have if the accord is rejected.
(Picard, 12:65)

Once you have reached an accord you have created a credibility. You have created a process of understanding. And to break the accord after that is not going to bring you back to the day before, it is going to create a totally different situation. No Quebec government will be able to accept less, so the situation will be much worse than it was before.
(Picard, 12:55)

35. Former Liberal Cabinet Minister J.W. Pickersgill expressed the view that not only is the 1987 Accord good for Canada but that Canada should take it in both hands and run with it:

If Quebec is rebuffed, if this accord becomes discord, and the opportunity is lost to get the acquiescence of the constitutional authorities in Quebec, my guess is--I am not an especially good prophet but I do not hesitate to say this--that it probably will not arise again for another generation, and never again on such reasonable terms.
(Pickersgill, 10:126)

36. For reasons that we develop in Chapter 4, we do not accept the idea that any agreement that brings Quebec "into the constitutional family" must a fortiori be a good agreement. Nor do we believe that the terms of the 1987 Accord should be looked at in isolation, as if the high policy priority of seeking an accommodation with Québec did not exist. But there is no doubt, in our view, that if the 1987 Accord is otherwise acceptable, Canada is the clear winner by ending the impasse with Quebec generated by the Constitution Act, 1982. As Professor Wayne MacKay of Dalhousie Law School put it:

... in terms of constitution-making, I think it is time to make love and not war, and I am not sure that riding tall in the saddle and giving no quarter to the provinces is any longer the way to try to build the nation in Canada. (MacKay, 3:46)

Last HTML revision: 13 November, 1995

William F. Maton