The Task of Evaluation

1. On May 9, 1986, at Mont Gabriel, Quebec, the Quebec Minister of Intergovernmental Affairs, Gil Rémillard, set out the five conditions that would have to be met in order to secure the Quebec government's willing assent to the Constitution:

2. Immediate reaction outside Quebec to these conditions was generally favourable. It was noted that earlier Quebec demands for a significant redistribution of legislative power from the federal Parliament to the Quebec National Assembly had then been put aside. Even the Toronto Globe and Mail, on June 2, 1986, commented:

The great danger with the list is that it is close to being a final position. It is impossible to imagine any Quebec government signing a Constitution on the basis of anything less.

3. On August 12, 1986, at the 27th annual Premiers' Conference, the 10 provincial leaders issued their Edmonton Declaration, which sought to avoid a general "constitutional bidding war" by limiting the next round of constitutional talks to an attempt to achieve agreement on Quebec's demands, and to defer other pressing constitutional issues to subsequent rounds. The Edmonton Declaration read:

The premiers unanimously agreed their top constitutional priority is to embark immediately upon a federal-provincial process, using Quebec's five proposals as a basis for discussion, to bring about Quebec's full and active participation in the Canadian federation.

4. The Edmonton Declaration, in Senator Lowell Murray's view, was the key to the 1987 Constitutional Accord:

Had this agreement not been secured and had it not been possible to limit the agenda and to limit the objective, it is highly unlikely we would have succeeded in our primary goal, which was the repatriation of Quebec.
(Murray, 2:10)

5. The negotiations that led to the 1987 Constitutional Accord were directed, specifically and intentionally, to the five conditions formulated by the Quebec government.

6. Obtaining Quebec's assent was the purpose and the major achievement of the 1987 Constitutional Accord. Yet the question must be asked: by what criteria are the merits of the Accord to be evaluated? As a package whose chief strength is that Quebec has agreed to it? As a series of distinct and freestanding constitutional proposals each to be judged on its own merits, or on some other basis?

7. No criteria are spelled out in the resolutions appointing the Joint Committee passed respectively on June 17 and June 16, 1987 by the Senate and the House of Commons.

8. By these resolutions we are directed to consider the 1987 Constitutional Accord and to report no later than September 14, 1987. Our interpretation of this mandate was explained by one of our Co-Chairmen, Chris Speyer M.P., at the opening of our first public session:

First. we are to consider the issues and concerns that led the First Ministers to the 1987 Constitutional Accord, and we are to give full and thorough consideration of the arguments both for and against acceptance of the Accord that they reached. Our job in this Joint Committee is not to make final decisions. That will be for Parliament, when it debates and votes on the Resolution. Our job is to listen to what Canadians have to say and to ask questions to get to the bottom of the issues they consider to be important.

The second branch of our mandate is to report to Parliament fully, to report accurately and fully the concerns and arguments that have been raised by both those who oppose the Accord and those who support it. Our objective is to ensure that the members of the Senate and the members of the House of Commons are fully informed about all relevant matters when the 1987 Constitutional Accord comes before Parliament for debate and decision. All of us are determined that these objectives will be achieved.
(Speyer, 2:8,9)

9. So far as criteria for evaluation of the 1987 Accord are concerned, the witnesses who made submissions to the Joint Committee tended to associate themselves with one of three schools of opinion.

10. To some extent, these differing approaches simply reflect a different appreciation of the facts. To obtain as broad a spectrum of opinion as praticable, the Joint Committee placed advertisements in major Canadian newspapers approximately one month prior to its first public session, inviting written submissions or requests to appear before the Committee. In response we received 301 written submissions plus requests to appear that resulted in some 131 individuals and groups testifying before us to share their opinions and answer our questions. The Committee sat in Ottawa but paid the expenses of witnesses who asked to be reimbursed.

11. We are aware, of course, that our mandate has been criticized for not encouraging adequate public participation. A number of witnesses complained about the short period of time available to prepare written submissions. Others believed that holding hearings during the summer would have the effect of both reducing the number of participants appearing and diminishing the size of the audience for the hearings. Still others regretted that the Committee did not travel throughout Canada and hold hearings across the country.

12. According to some of our harsher critics, the time constraints under which the Committee operated, coupled with the agreement by the First Ministers that they would limit changes in the text of the Accord to the correction of "egregious errors", indicated that the Committee was not intended to carry out a proper consideration of the Accord.

13. Bearing in mind the need, acknowledged by a number of witnesses before us, to preserve the momentum of the Accord, we do not believe that the five and one-half weeks of public hearings was too short a period of time to canvass the potential issues and problems raised by the 16 sections that make up the proposed Constitution Amendment, 1987. The number of submissions that we received and the number of witnesses that we heard are roughly similar to those received and heard by the Joint Committee considering the more numerous and arguably more complex proposals that were to become the Constitution Act, 1982. We believe that the submissions we received and the witnesses that we heard dealt thoroughly and comprehensively with all aspects of the Accord, both in terms of support and in terms of opposition. Any fundamental flaws in the Accord would have emerged in the course of this process.

14. There can be no doubt that our timetable has been a demanding one, and one that has required all involved to focus their energies and attention on the task at hand. We do not, however, feel that our schedule was an unrealistic one or one that in fact excluded meaningful public participation. We believe that the process has provided us with a strong basis upon which to evaluate the 1987 Accord.

15. The public was not in any way excluded from the process. We heard witnesses from all walks of life, from all regions of the country, representing a wide spectrum of political opinion and the broadest imaginable range of special concerns and perspectives. Our hearings were open to the public and were broadcast virtually in their entirety on television.

16. In the process of gathering views and opinions we have, of course, developed our own perspective on the 1987 Accord and how it should be evaluated. We clearly reject the "if it ain't broke don't fix it" school of thought. While, as will become evident, we do not accept some of the propositions put forward by Senator Lowell Murray on behalf of the government, we entirely agree with him when he observed:

... The psychological and emotional and political implications of having Quebec legally bound to a Constitution its national assembly did not accept and does not subscribe to are in my judgment a destabilizing force within our federation.
(Murray, 2:22)

17. At the same time, we also find ourselves unable to agree entirely with either those who placed almost total emphasis on securing Quebec's agreement to the Constitution or those who, on the contrary, urged that each term of the 1987 Constitutional Accord must be viewed in isolation and accepted or rejected on its own merits. In our view, a proper evaluation must balance the importance of the objective against the means used to achieve the objective and the likelihood of getting agreement on anything better.

18. This is an approach shared by some of those who were sceptical about the 1987 Accord. Dean John Whyte of Queen's University Law School, for example, told us:

Of course it is not perfect. Nothing could be perfect. It is time to ask directly what exactly it is that is being done here and is it damaging and harmful for the future of Canada? I will repeat again, is it more damaging and more harmful to the future of Canada than to continue to live in a country where one of the provinces representing one of the founding peoples of this country is not reconciled, at a formal level in any event, to the Constitution?
(Whyte, 10:61)

19. Members of the Joint Committee were particularly impressed with the approach formulated by Gordon Robertson, former Clerk of the Privy Council and a participant in almost every important federal-provincial conference on constitutional matters from 1950 until his retirement from the federal public service in 1979. Mr. Robertson advocated a three step approach:

As I see it, the basic question is what are the prime objectives of policy to be achieved at this time, 1987, in the constitutional realm? The (federal) government has decided, and I think the other governments, the provincial governments agree, that the prime objective is to achieve an arrangement under which Quebec can become a willing participant in the Canadian Confederation. This seems to me to be right as to the prime objective of policy at this time. If that is agreed, the second question I think is whether the arrangements to achieve that objective involve consequences that are seriously adverse for Canada. Then the third question, it seems to me, is whether there is a reasonable prospect of getting better arrangements than the arrangements that are incorporated in the Constitutional Accord, 1987.
(Robertson, 3:75)

20. It is perhaps too limited a standard to say that the Accord should be accepted unless it involves "consequences that are seriously adverse for Canada", but the general approach suggested by Mr. Robertson has the advantage that it combines the elements of ends, means and practicality in a balanced relationship. In our view, Mr. Robertson's approach provides a useful framework within which to evaluate the merits of the 1987 Constitutional Accord.

21. Having set out some of the general thinking that has guided our approach assessing the merits of the 1987 Accord, we shall turn next to a more detailed analysis of its various terms.

Last HTML revision: 13 November, 1995

William F. Maton