A. The Process
The objective of the New Brunswick Companion Resolution is to encourage ratification of the Meech Lake Accord by all provinces on or before June 23 by offering assurance that other priorities will be advanced. Premier McKenna noted that in putting together his Companion Resolution he had been careful to add to and not to subtract from the Meech Lake Accord. He also noted that unlike the Accord his Resolution was not "a seamless web" that had to be adopted or rejected as a package. He pointed to the need for flexibility to accommodate other concerns around which there is a wide degree of consensus.
Questioned as to what would constitute substantive support for his Resolution he said: "We in New Brunswick will be the judge of what represents that commitment. We believe, even at some cost to our credibility if necessary, we absolutely must keep our flexibility."
Before considering the substance of the McKenna Companion Resolution your Committee had to determine if the June 23 deadline was, in fact, a real one. We heard a number of learned witnesses on this point. Your Committee acknowledges that there is a legal debate over the significance of this date.
Some argued that given political will the June 23 deadline could be extended. The First Ministers could agree to introduce resolutions in their respective legislatures to allow for more time to consider the Accord. While possible in theory, the question is whether all governments and legislatures would agree to act quickly and unanimously on such a Resolution.
Having carefully considered the various options, your Committee has drawn the following conclusions:
2. Your Committee recognizes that if the elements of the Companion Resolution we have proposed are to provide an opportunity to break the Meech Lake impasse, the question of "certainty" will have to be addressed and unequivocally resolved.
3. It is our view that timing and process leading to additional amendments to the Constitution of Canada can only be negotiated by First Ministers. We believe our recommendations may form the basis for agreement if First Ministers move quickly to resolve the question of the timing of additional changes.
Your Committee then looked at the specific concerns of the New Brunswick, Manitoba and Newfoundland and Labrador governments keeping in mind the concerns identified by others who felt their interests were left out in the process that led to the Meech Lake Accord.
B. The Content
New Brunswick would like to see an addition in the Meech Lake Accord to the clause respecting Canada's linguistic duality and Quebec's distinct society, namely that within New Brunswick, the English linguistic community and the French linguistic community have equality of status and equal rights and privileges. This would entrench a principle presently stated in a New Brunswick statute.
5. Similarly your Committee agrees with the New Brunswick proposal to affirm a role for the legislature and government of New Brunswick to preserve and promote the equality of status and equal rights and privileges of that province's two official linguistic communities.
The Meech Lake Accord affirms the role of Parliament to preserve one of Canada's fundamental characteristics--linguistic duality. Premier McKenna has proposed in his Companion Resolution to affirm as well Parliament's role to promote our linguistic duality.
Testimony from constitutional experts is unanimous in affirming that the promotion of linguistic duality as proposed is limited to federal jurisdiction. This is also clearly understood by minority language groups who testified before the Committee.
Although the promotion role suggested by Premier McKenna is now demonstrated in law in the revised Official Languages Act (R.S.C. 1985, 4th Supp., 31), your Committee has been persuaded by the repeated argument made by minority language groups to the effect that even though a promotion clause may not add anything legally it would have a dynamic effect on these groups.
On this important issue other proposals have been put forward that merit the attention of First Ministers. These include the question of "where numbers warrant" and the control and management of schools in section 23 of the Charter; and an examination of the concept of a "Code of Minority Language Rights" put forward by witnesses and the Government of Quebec.
The Meech Lake Accord provides for provincial involvement in the appointment of Senators and Judges of the Supreme Court. The First Ministers who signed the Accord took the position that it should be passed, unchanged, unless there was some "egregious error". The body of evidence presented to your Committee is that most Canadians perceived at least one such oversight and that was the failure to include the Yukon and the Northwest Territories in the selection process.
The Meech Lake Accord would also change the amending formula required for the creation of new provinces from the 2/3 of the provinces with 50% of the population to unanimity. Prior to 1982 the process for admission of new provinces was the sole responsibility of the federal government. New Brunswick has proposed a return to the pre1982 situation thereby ensuring that the two territories could aspire to provincehood under the same conditions as other provinces created since 1867. Your Committee has heard compelling evidence on this issue as it travelled throughout Canada and more particularly in the northern territories.
New Brunswick also proposes to add an agenda item to the Annual First Ministers Conference on the Constitution. It would deal with constitutional matters that directly affect the aboriginal peoples of Canada, including the identification of the rights of those people. Representatives of aboriginal groups testified that instead of being one of the items on the agenda of annual First Ministers Constitutional Conferences, a separate process be devoted specifically to aboriginal matters. They recommended that these conferences would be held every three years.
A concern addressed in the New Brunswick Companion Resolution in relation to section 16 of the Meech Lake Accord is to the effect that the Charter is overridden by the distinct society clause. This concern has been expressed by representatives of women's groups and other equality seekers.
There is a debate about the impact of the distinct society clause on the interpretation of the Canadian Charter of Rights and Freedoms. The thrust of expert legal testimony would suggest that the issue is more a matter of perception. For example a legal and constitutional expert, Roger Tassé QC, Deputy Minister of Justice under a Liberal administration when the Charter was adopted and, later, in his then capacity as legal advisor to the present government, was present at discussions at the Langevin Building. He has testified:
"This is because the distinct society clause, like the Canadian duality clause which is an integral part of it, is an interpretive clause which does not in any way change the dynamics of the Charter of Rights and the protection it guarantees. Within the framework of the Charter, the only scope of this clause is to implement section 1. You will recall that this section stipulates that the rights and freedoms guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This extremely rigorous test was made even stricter by subsequent rulings of the Supreme Court.
No one has ever seriously claimed that the rights and freedoms guaranteed by the Charter are absolute. Section 1 stipulates the conditions under which they can be restricted. I ask you, on what principle should the special situation of francophone as a minority group in Canada, in North America, be excluded from the scope of section 1? Our courts including the Supreme Court of Canada in the notorious sign law case, had already agreed to take that situation into account even before the Meech Lake Accord was passed.
The rights and freedoms guaranteed by the Charter are in no way compromised by the distinct society clause and, in my opinion, the adoption of this clause would only confirm that the distinct society of Quebec is a legitimate fact that should be taken into consideration in applying section 1".
Some First Ministers are themselves on the record on this point. In the interpretation of our Constitution, courts give weight to such statements of intention.
Your Committee also considered the New Brunswick proposal that every five years the Senate carry out an assessment of the results achieved by governments and legislative bodies in relation to the commitments in section 36 of the Constitution Act, 1982 on equalization and reduction of regional disparities, and that a report be presented to the first annual Conference of First Ministers on the economy following each such assessment.
New Brunswick has also proposed an amendment that would require the House of Commons and legislative assemblies to hold public hearings before adopting any measures related to a constitutional amendment. This would include revocation of a constitutional resolution. Your Committee agrees with this idea. Under the amending formula adopted in 1982 legislatures and not governments have ultimate responsibility for approving constitutional amendments. This may seem like a subtle distinction but the lesson of Meech Lake is that the Canadian people want a say in the development of their Constitution.
14. Your Committee recommends that a Companion Resolution process that adds, without subtracting, to the provisions of the Meech Lake Accord has the best prospect of solving the current constitutional impasse.
15. Your Committee recommends the New Brunswick Companion Resolution, with the suggested changes and additions contained in our report, as the basis from which the First Ministers and the country can address the present constitutional impasse.
Premier McKenna has asked for some assurances that there is support for his Companion Resolution.
However, this may be academic unless New Brunswick is satisfied and the provinces of Manitoba and Newfoundland and Labrador address their concerns by adding to the New Brunswick Companion Resolution or by proposing their own Companion Resolutions.
Addressing the Concerns of Manitoba and
Newfoundland and Labrador
Critical to a report that would respond appropriately to the outstanding issues related specifically to this round of constitutional development was keen and sensitive understanding of the concerns expressed at the hearings in Winnipeg and St. John's. Your Committee listened carefully, searching for answers to help get through this constitutional impasse.
The provinces of Manitoba and Newfoundland and Labrador have both expressed very strong concerns about the unanimity requirement for Senate reform. While the Committee heard persuasive testimony asserting that practical political considerations underscore the desirability of unanimous consent, we are sensitive to the point of view of Manitoba and Newfoundland and Labrador.
Your Committee was also interested by Manitoba's suggestion of a "Canada Clause" which would include recognition for the aboriginal people and recognize the multicultural dimension of our heritage. A similar idea was eloquently advanced by the government of Newfoundland and Labrador.
The Manitoba Task Force recommended that an invitation to participate in First Ministers' Constitutional Conferences be extended to the elected leaders of the governments of the Northwest Territories and Yukon by the Prime Minister whenever he was of the opinion that agenda items would directly affect them. Testimony reinforcing this idea was presented to your Committee during the course of our hearings across Canada but particularly in Yellowknife and Whitehorse.
Therefore as suggested by the Manitoba Task Force:
This would obviously include any discussion of changes to territorial boundaries.
Manitoba further suggested that the Meech Lake provisions dealing with immigration be reviewed every five years.
Manitoba, recognizing very early that this generation of Canadians would want to participate in constitutional reform, was the first province to require public hearings prior to ratifying amendments negotiated by its Premier with the other First Ministers. This interest is held in common with other Canadians including Premier Wells of Newfoundland and Labrador who expressed concern about the need for more public participation in the constitutional amendment process. Since the proclamation of the Canadian Charter of Rights and Freedoms, many Canadians see the Constitution as belonging to themselves to a greater extent than ever before.
We have therefore endorsed the recommendation that public hearings become an integral part of future constitutional change. (See recommendation no. 13)
The Premier of Newfoundland and Labrador in testifying before your Committee also expressed his government's concerns relating to the issue of the federal spending power. Your Committee is particularly sensitive to the deeply rooted feeling of Canadians in the less developed areas that federal attention to their concerns might be reduced.
The agreement reached at Meech Lake envisaged a First Ministers conference on Senate reform to take place within months of proclamation of the Accord. Several governments are anxious to get on with the process. The province of Newfoundland and Labrador has a very detailed proposal for Senate reform, the government of Ontario and Manitoba have already established legislative Committees to look into this subject, the Prime Minister of Canada has stated his intention to create such a Committee to conduct hearings this summer on the basis of a comprehensive discussion paper. We continually come back to the point that unless we get over the present constitutional impasse, the prospects for Senate reform or any other constitutional change appear to be remote.
The New Brunswick Companion Resolution did not deal with Senate reform because, as Premier McKenna noted, it was an issue of more immediate interest to other provinces. We have attempted to address this priority through the idea of a sunset clause for the amending formula for Senate reform. We believe Senate reform is also of fundamental importance to the country.
There is less consensus than we expected about the shape and function of a reformed Senate and there is little chance of building a consensus as long as the present deadlock continues. We have proposed a way to get us over the initial impasse and to get talks started.
Once that happens we are convinced that Canadians will turn their attention to Senate reform and other outstanding items.
Finally, your Committee wants to thank all Canadians who testified or submitted briefs for their contribution. We have been profoundly affected by what we have heard during the course of our hearings. We have witnessed the extent to which Canada has been irrevocably changed by the entrenchment of the Canadian Charter of Rights and Freedoms and the patriation of our Constitution. Canadians, obviously, want to get on with their constitutional development. That responsibility starts, but does not end, with First Ministers. It extends to all legislators, to interest groups and to every Canadian.
Last HTML revision: 7 February 1997.
William F. Maton