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.
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:
This proposal would require the Constitution of Canada to be interpreted consistently with certain sociological realities--that French-speaking Canadians are centred in Quebec but present elsewhere in Canada, and that English-speaking Canadians are concentrated outside Quebec but also are present in Quebec. This is
described as a fundamental characteristic of Canada and "the role" of Parliament and all provincial legislatures to preserve it is "affirmed". At the same time, in light of this fundamental characteristic, it is recognized that Quebec constitutes within Canada a distinct society. The legislature and government of Quebec have the role of preserving and promoting its distinct identity. However, nothing in this proposal is intended to derogate from the powers of either level of government.
(2) The Senate
The Senate provisions would introduce a new process of appointments for Senators. At the present time, the Governor General (advised by the government of the day) enjoys an almost unfettered discretion in filling vacancies in the Senate. The only restriction on this discretion is that persons selected must meet the geographical and other qualifications for appointment. The new provision would require Senate vacancies to be filled by persons whose names have been submitted by the government of the province to which the vacancy relates. Thus, for the first time provinces will enjoy a constitutional right to participate in the appointment of Senators. However, the Governor General of Canada would continue to make the appointment and appointees must be acceptable to the federal government. This procedure has been described by some as a double veto --no person will be appointed who is not acceptable to both levels of government.
(3) Supreme Court of Canada
The Constitution Amendment, 1987 would continue the process of entrenching the Supreme Court in the Constitution of Canada begun in the Constitution Act, 1982. The present qualifications for appointment to the Supreme Court bench would be entrenched. The new provisions would eliminate much of the ambiguity surrounding the 1982 provisions concerning the status of the Court and the composition of the Court. The most significant change that would result from the proposed amendments would be that, as in the case of the Senate vacancies, the provinces would have a role to play in the filling of vacancies on the Supreme Court of Canada. The appointment procedure would be much like that in the case of the Senate, with the result that a double veto would be created. The provinces would decide whose names to submit, but the federal government need only appoint from the provincial lists persons acceptable to it.
The proposed amendments, as stated above, would constitutionalize the present composition of the Court -- a Chief Justice and 8 other judges, at least 3 of whom must be from Quebec, that is, a member of the Quebec bar or a Quebec judge for a period of 10 years. The informal allocation of 3 judges to Ontario, one to British Columbia, one to the Prairie provinces and one to Atlantic Canada would continue to be informal and not binding on the Governor General. A Quebec vacancy would have to be filled by a person whose name was submitted by the government of Quebec. A non-Quebec vacancy could only be filled from among the persons whose names have been submitted by a provincial government other than Quebec.
(4) National Shared-Cost Programs
At the present time the government of Canada funds many programs in areas that are within exclusive provincial legislative jurisdiction. Some programs involve direct grants to individuals or organizations; others involve funds transferred to the provinces; still others are programs in which expenditures are shared by the two levels of government. The federal government sometimes has, but other times has not, established the conditions of programs. In some instances, the program for post-secondary education for example, no conditions are attached.
Under the Accord, in the case of future national shared-cost programs in an area of exclusive provincial jurisdiction, a provincial government that establishes a program or initiative that is compatible with the national objectives of the national shared-cost program but that chooses not to participate in the program, would be entitled to reasonable compensation from the federal government. A province that fails to meet the requirements would not be entitled to any compensation, reasonable or otherwise.
The major thrust of the immigration provision would be to give constitutional recognition to federal-provincial immigration agreements, such as those negotiated by the governments of Canada and Quebec since 1971. These agreements can only deal with immigration and the temporary admission of aliens. Naturalization and other matters pertaining to aliens would continue to be within the exclusive legislative authority of Parliament. Even in those areas covered by such agreements, Parliament would still enjoy the paramount legislative authority to set "national standards and objectives" relating to immigration and aliens. Immigration agreements would not be valid if repugnant to the national standards and objectives established by Parliament.
Immigration agreements would be subject to the Canadian Charter of Rights and Freedoms, ensuring that immigrants to any part of the country would be guaranteed, among other things, the right to move from one province to another.
(6) First Ministers' Conferences
The Constitution Amendment, 1987 would entrench two types of First Ministers Conference. Conferences dealing with the state of the Canadian economy would be required to be convened annually. Conferences to address constitutional matters would also be required to be convened annually starting in 1988. Regardless of what other matters might be on the agenda of these conferences, the agenda would have to include the following matters: Senate reform, which must include "the role and functions of the Senate, its powers, the method of selecting Senators and representation in the Senate", and "the roles and responsibilities in relation to fisheries".
(7) The Amendment Formula
The general procedure for amending the Constitution set out in section 38(1) of the Constitution Act, 1982 is not changed. It requires that an amendment be authorized by resolution of the Senate and House of Commons and the legislative assemblies of at least two-thirds of the provinces that have, according to the latest general census, at least fifty per cent of the population of all the provinces. The Constitution Act, 1982 also includes a number of special amending formulae.
The changes proposed by the Constitution Amendment, 1987 are two in number. First, certain matters now listed in section 42(1) of the Constitution Act, 1982 -- which are now subject to amendment under the 750 formula--would in future become subject to amendment only with the unanimous consent of all governments. These include representation in the House of Commons, the powers of the Senate and the method of selecting Senators, representation in the Senate and the residence qualifications of Senators, the Supreme Court of Canada (other than the composition of the Court), the extension of existing provinces into the territories and the establishment of new provinces.
Second, the right to compensation for amendments resulting in a transfer of legislative powers from the provinces to the federal government would be broadened to guarantee compensation to a province that opposes the transfer of any legislative powers to Parliament, not simply the transfer of legislative powers "relating to education or other cultural matters" as provided by section 40 of the Constitution Act, 1982.
William F. Maton