Meech Lake Accords and Canadian constitutional reform

¶ … Meech Lake Accords

In order to properly examine the Meech Lake Accords and their significance, we must look first at why the Accords were necessary and what led up to them. Until 1982, Canada had been governed by the British North America Act, passed by the British Parliament in 1867. This act provided for the unification of the Canadian provinces into the Dominion of Canada, and set out the powers of the provincial legislatures. All powers not designated to the provinces were given to the Dominion. Later interpretations by the British Privy Council extended property rights in the provinces and developed the doctrine of emergency powers to aid the Dominion in time of war.

Ever since the Statute of Westminster 1931, the British government had been willing to give up control of Canada, but Canadian federal and provincial governments were unable to agree on a new formula to allow amendments. Various unsuccessful attempts were made to change the constitution, including the Victoria Charter of 1971.

On March 25, 1982 the British Parliament passed the Canada Act, also called the Constitutional Act of 1982, which made Canada a fully sovereign state. It was proclaimed by Queen Elizabeth II on April 17, 1982. Residents of Quebec had voted in May 1980 not to seek sovereignty and Prime Minister Pierre Trudeau was pushing for the constitution, which was finally agreed to by every province, except Quebec, in November 1981. This constitution combined the British North America Act of 1867 with subsequent amendments to that act by the British Parliament, and new material resulting from eighteen months of intense negotiations between federal and provincial powers. It contained a Charter of Rights and Freedoms, which guaranteed thirty-four rights including religious freedom, minority language education, and cultural tolerance. The Charter contained a clause which allowed many rights to be overridden in the federal or provincial legislatures by a "notwithstanding clause." The Act also recognized native treaty rights, increased the power provinces have over their natural resources, and provided an amendment formula, which required approval of two-thirds (seven) of the provinces and 50% of the country's population. Quebec opposed ratification of this constitution claiming the right to a constitutional veto. These efforts ended in December 1982 when the Supreme Court of Canada rejected its claim, opening the way to further negotiations.

In 1984 Brian Mulroney became Prime Minister partly on a platform of reintegrating Quebec into mainstream Canadian life. On a personal level, he was determined to succeed where Trudeau had failed, and accepted the idea of continuing negotiations with Quebec. On several occasions, the new Quebec government of Robert Bourassa outlined its constitutional demands: constitutional veto, limitation on the spending power of the Federal government, a role in the appointment of Supreme Court judges, recognition of the distinctive character of Quebec, and improved powers over immigration. The new Mulroney government was receptive to these demands and eventually the other provinces agreed to constitutional discussions. As he said in his announcement of the Accords to the Canadian House on May 1, 1987, "Our task, simply put, was to settle a constitutional impasse which was incompletely resolved in 1981. Our task was to attempt to reconcile Quebec's distinct needs with the interests of all other provinces and the good of the country as a whole."

On April 30, 1987, the provincial ministers, referred to as the First Ministers, and Prime Minister Brian Mulroney meeting at Meech Lake in the Gatineau Hills near Ottawa, agreed on a draft document which would provide the basis for Quebec to ratify the Canada Act. This agreement contained several modifications to the Canadian constitution. Reporting to the Canadian House, Prime Minister Mulroney outlined the agreement as follows:

We agreed to recognize the distinctiveness Quebec brings to Canada, which includes within it two principal language communities within the Federation.

We agreed to give constitutional protection to an expanded immigration agreement with Quebec and to enter into accords with other provinces, appropriate to their circumstances.

We agreed to entrench the Supreme Court of Canada and the requirement that at least three of the nine Justices appointed be from Quebec, and to provide for provincial involvement in Supreme Court appointments.

We agreed that reasonable compensation be granted to provinces that do not participate in future national shared-cost programs in areas of exclusive provincial jurisdiction, if they undertake their own initiatives or programs compatible with national objectives.

We agreed that all provinces must approve changes to national institutions under section 42 of the 1982 Constitution Act, and that the Government of Canada will provide reasonable compensation in all cases where a province opts out of an amendment transferring provincial jurisdiction to Parliament.

We agreed that there will be annual First Ministers' Conferences on the Constitution and that the first will be held before the end of 1988 to discuss senate reform, the fisheries and other items to be agreed upon.

Until Senate reform is achieved, appointments to the Senate will be made by the Federal Government from lists of candidates furnished by the provinces.

We are also entrenching in the Constitution the annual First Ministers' Conference on the economy.

Because these were amendments to the existing constitution, they required ratification by all of the ten provinces and the federal government within a three-year period. Mulroney was enthusiastic in his support of these accords saying, "Mr. Speaker, the Meech Lake Agreement is good for Canada, and good for Canadians. It will unblock the Constitutional reform process and enable Canadians to turn their attention to other issues."

There was still much work to be done, however. Another First Ministers' Meeting was held in Ottawa on June 2nd and 3rd to confirm the final language of the Accord, and presented to the House of Commons on the 3rd. On June 23, 1987, the National Assembly of Quebec passed a resolution adopting the Accord by a vote of 95 to 18, over the opposition Parti Quebecois. This started the clock on the three-year period for ratification by all ten provinces. This ratification by Quebec also meant that the Accord was now set in stone and virtually unchangeable. Any changes to the document would have meant another ratification vote by Quebec.

The main provisions of the agreement demanded by Quebec called for a recognition of the province of Quebec as a "distinct society," a commitment to bilingualism, increased provincial powers with respect to immigration, expansion of the provincial right to constitutional veto, and provincial input in appointing supreme court judges and senators.

The first clause of the Accords called for dealt with the issue of Quebec as a "distinct society." It took the approach that Quebec was sufficiently distinct to affect the interpretation of the Constitution. The federal government was given the responsibility of protecting the bilingual nature of Canadian society and the Quebec government was assigned the role of promoting the distinct nature of the society in Quebec. This was the crux of the Accords and was to prove the greatest obstacle to ratification.

The Meech Lake Accords included a commitment by the federal government to conclude an agreement with the Government of Quebec which would incorporate the principles of the Cullen-Couture agreement on immigrants, visitors for medical treatment, students and temporary workers. It also guaranteed that Quebec would receive a proportionate number of immigrants, including refugees, within the annual total established by the federal government for all of Canada. It provided for Canada to withdraw services (except citizenship services) for the reception and integration of all foreign nationals wishing to settle in Quebec where services were to be provided by Quebec. This withdrawal of services was to be accompanied by reasonable compensation by the Government of Canada.

Quebec had always claimed the right to veto acts of the federal government with which it did not agree. The Supreme Court of Canada had ruled against them in December 1982. Carried to its extreme, if every province had the right to veto any act by the federal government, it could completely stifle development. The Accords addressed this by substituting the right of veto with the right to opt-out with compensation. It would have restored full compensation for opting out of amendments transferring legislative power from the provinces to the federal government.

The Meech Lake Accords would have constitutionally established the Supreme Court as the highest court of appeal for Canada, and would also have set the size of the court at nine judges, three of whom would have been from Quebec. This would merely have continued the status quo. The Accords also required the Governor General to appoint judges from lists of candidates provided by the provinces, however no provision was made for the possibility that the Governor General might find none of the suggested candidates qualified.

Almost immediately the Meech Lake Accords came under fire. Opponents claimed that it would significantly weaken the power of the federal government. The situation was helped when in December 1988, Premier Bourassa of Quebec used the "notwithstanding" clause to ban English signs in Quebec, drawing fire from native people.

Many were concerned that Quebec could use the phrase "distinct society" to justify any type of action. Some were concerned about the secret way in which the Accords were created, without any broad public discussion. The only provinces that held public discussion were New Brunswick and Manitoba and it both provinces public opinion was largely negative.

Women's groups and native groups were also opposed claiming their rights were ignored. In a letter to Prime Minister Mulroney, Chief Roland Crowe of the Saskatchewan Indian tribe outlined two major problems with the Accords.

First, Treaty Indians must be participants in the future series of First Minister's Conferences on Constitutional reform; and, second, the Chief expressed his concerns over section 106A, which has the potential to transfer services to the provinces.

We are vitally concerned with federal and provincial arrangements in relation to social and economic programs. The federal government used the implementation of Medicare to attempt to transfer jurisdiction over Indian health services to the provincial government." Chief Crowe stated in his letter to the Prime Minister. Our concern with Section 106A is a complete loss of a federal role in ensuring delivery of services to Indians when the programs are taken over by the provinces. Any discussion of federal-provincial roles in relation to federally funded programs must be preceded by a resolution of the issues of treaty rights to health, education, social services and economic development.

Even former Prime Minister Pierre Trudeau in an interview with Canadian Broadcasting Corporation's Barbara Frum, came out against the Accords saying it was a sellout. In the interview, Trudeau acknowledged that Quebec was distinct, but no more distinct than many other places in the nation and deserved no special treatment. "The Accord devised by the Mulroney government and accepted by the ten provincial premiers in April of 1987 in an atmosphere of euphoria and reconciliation, was torpedoed by Trudeau and his political followers. His attacks on the Accord were biting, hurtful, sometimes telling but also frequently very unfair."

Another problem was the use of the word "promote" in the Accords. It raised fears of special powers, or a special constitutional status for Quebec, and largely contributed to the downfall of the Meech Lake Accords. As a result, the provinces that objected to the Accords either held constitutional hearings, as did Manitoba and New Brunswick, or created an alternative proposition for constitutional reform, as was the case in Newfoundland. During debate in the public hearings before the Manitoba Task Force, it was found that the "distinct society" clause was the most controversial. There were concerns that it would divide Canada into two linguistic groups. There was also the fear that it would create two classes of citizens by giving Quebec special status, and that it would establish vague and undefined terms in the Constitution. The Task Force suggested that any interpretive provision should reflect a much more diverse recognition of Canadian society.

Another issue involved economics. In light of the other significant accord negotiated in 1987, the North American Free Trade Agreement (NAFTA), there were discussions concerning whether the Meech Lake Accords would help or hurt Canada in the post-NAFTA environment. "Any one province, for example, could balk at ratifying a constitutional amendment until its particular economic demands are met; or it could dicker over the design of a new social program, exacting a guarantee of further subsidies for local industry as the price of its conformity to federal preferences."

In spite of opposition, most of the nine other provinces followed Quebec and quickly ratified the Accords. In early June 1990, all of the First Ministers agreed to ratify the Accord, subject to the condition that there would be additional discussions about constitutional amendments regarding an elected Senate, the amending formula, and Aboriginal issues. It ran into a brick wall in the Manitoba Legislative Assembly where Assemblyman Elijah Harper was able to filibuster the bill until the time limit expired. At the last minute the federal minister responsible for federal-provincial affairs intervened and proposed extending the deadline three months to coincide with the ratification in Saskatchewan, which would have necessitated reratification by Quebec. However, when it became obvious that the Manitoba assembly would not pass the resolution in time to meet the original deadline, the Newfoundland Assembly suspended debate, effectively killing the Accords.