At the time this article was
written F.L. Morton was Professor of Political Science at the University of
The Constitution Act, 1982
"repatriated" the Constitution by giving Canadians the power to amend
the Constitution unilaterally, without reference to Great Britain. It sets
forth two general amending formulas. The Meech Lake Accord follows neither.
(There is also a third amending formula (s.43) for amendments that apply to
only one or several provinces)1.
Every discussion and every
legislative vote since the details of the Meech Lake Accord were agreed to by
the eleven first ministers in June, 1987, have assumed that the Accord had to
be ratified within a three year time limit or die. This apparently unanimous
understanding was recently challenged by Gordon Robertson, former Secretary to
the Privy Council and senior policy advisor to the Pearson and Trudeau
governments. Mr. Robertson has argued that there is no three year time limit on
the ratification of the Meech Lake Accord.2 Mr. Robertson contends
that the heretofore accepted view rests on a misinterpretation of the amendment
provisions of the Constitution. Robertson's position, if correct, would have
immediate and significant consequences for the Meech Lake Accord and thus
Canadian politics more generally. The "removal" of the three year
time limit would give the flagging Accord a new lease on life. Indeed, it would
extend indefinitely the opportunity to ratify the Accord, thus eliminating the
political crisis predicted by many if Meech were to fail in June, 1990.
Mr. Robertson has summarized his
position as follows. The three year time limit imposed by section 39 of the
Constitution applies only to amendments made pursuant to the section 38 formula
—seven provinces with fifty percent of the population. The Meech Lake amendment
"package" is not and could not be ratified under the "7/50
rule" because it contains two amendments that touch upon matters specified
in section 41 of the Constitution--the composition of the Supreme Court of
Canada and changes to the amending formula. Section 41 requires amendments on
these matters to have the unanimous consent of all provinces. Section 41
amendments do not have any time limits.
For Mr. Robertson, it follows that
since the Meech Lake Accord can only be ratified under the unanimity rule of
Section 41, it does not have any time limit. To settle this issue Mr. Robertson
advocates referring it to the Supreme Court of Canada. If his analysis is
correct, Mr. Robertson concludes, the Supreme Court will save Meech Lake from
"death by the clock", and a constitutional crisis will have been
To uncover the flaw in Mr.
Robertson's logic, one must separate out what Meech Lake has blended together:
two separate amending formulas. The problem arises because the eleven first
ministers combined in one constitutional "package" a collection of
amendments, some of which fall under the section 38 rules ("7/50" with
a 3 year limit) and some under the rule s. 41 rules (unanimity with no time
limit). If the first ministers had had the foresight to separate their
amendments into two distinct proposals--a section 38 package and a section 41
package--there would be no controversy about time limits. (The section 38
package would have one; the section 41 package would not). Unfortunately, this
is not the case. The result is confusion: Which amending rules govern the Meech
Mr. Robertson's solution is to
subsume the section 38 amendments under the section 41 requirements--unanimity,
and no time limit. He reasons--correctly--that if the section 38 "7/50
rule" were to apply to the whole package, the section 41 amendments would
be made more easily than intended. Indeed, since the "7/50 rule" has
already been met within the three year time limit, the Accord would be a fait
accompli. Thus a "package" containing both kinds of amendments
must follow the s.41 rule of unanimity.
Since the Accord is a package, it
must be approved by the procedure necessary for whatever part or parts of the
package requires the highest level of approval. That "highest level"
is unanimity of the legislatures of all the provinces. Constitutional changes
that require unanimity must be made pursuant to Section 41 and this is what is
Mr. Robertson's argument is
plausible but not persuasive. Another solution is to import the three year time
limit of section 38 into the section 41 procedure. The result is a procedure
that requires unanimity (per s.41) and imposes a three year time limit (per s.
38). This is truly "the highest level of approval," to use Mr.
Robertson's own phrase, and it is the option the first minister (and the rest
of Canada) thought they were choosing in the Spring of 1987. It is certainly as
plausible as the Robertson option, and for the same reasons. While there are
irrefutable reasons for preferring the unanimity requirement of section 41 to
the "7/50 rule" of section 38, there is not any obvious reason for
jettisoning the three year time limit. True, this makes it more difficult to
gain approval for the Accord, but this may be its virtue not its vice.
The Meech Lake Accord proposes a
mind-numbing array of amendments to Canada's constitution. Cumulatively, these
amendments contain a very distinctive—and it turns out, controversial—vision of
Canada's future. Surely when constitutional changes of this magnitude and
extent are contemplated, it makes sense to require the highest degree of
political consensus to effect these changes. This is accomplished by combining
the most stringent aspects of both amending procedures, and it is not at all
surprising that it is the option the eleven first ministers agreed to when they
drafted Meech Lake. Fundamental constitutional change should not be lightly undertaken.
Mr. Robertson might well respond
that our political leaders are not free to create hybrid amending formulas by
combining different elements of sections 38 and 41. I would tend to agree. But by
this same logic, they are not free to turn section 38 constitutional matters
into section 41 issues by lumping them together in a single
"package". If the politicians should not be permitted to tack a three
year rule onto section 41-type amendments, neither should they delete it from
section 38-type amendments.
One conclusion is the intriguing
possibility that the Accord itself may be invalid and "unratifiable",
because it violates the "manner and form" requirements of the
Constitution by lumping together matters that must be treated separately.
"package" approach to constitutional amendments can be attributed to
a combination of arrogance and inexperience. The development of "executive
federalism" has led to an attitude among our first minister and their
advisors that the constitution is theirs to defend and amend. Prior to 1982,
this was pretty much the case. But the Constitution Act, 1982
"patriated" the Constitution not just by severing the link to Britain
but also by replacing the unwritten conventions by an explicit, written
amending formula. The Meech Lake Accord suggests that our first ministers have
not yet understood this. Perhaps old habits are hard to break, but this does
not excuse them from violating the new constitution. By this reading, the
"package" approach adopted in Meech Lake may very well render the
Accord itself unconstitutional.
A less draconian solution is that
when governments combine section 38 and section 41 amendments into a single
constitutional "package", they must meet the full requirements of
both sections: unanimity and the three year time limit. This approach satisfies
all the requirements of both amending formulas. With the June, 1990 deadline
approaching, Mr. Robertson's modest proposal would be a welcome lifeboat
The problem is that it would be
much more than a lifeboat. It would be an indefinite extension of Meech Lake
into the future, without end! Is it really acceptable that constitutional
change as far-reaching as Meech Lake should hang in the balance for five, ten,
twenty years, until sometime down the road the governments of New Brunswick and
Manitoba either change their mind or are voted out of office? Meech Lake
opponents would surely denounce such a scenario as intolerable. Would Meech supporters
be any more receptive? Are Premier Bourassa and the people of Quebec willing to
wait five, ten, twenty years for an answer? There is a logic behind the
practice of setting deadlines for the approval of constitutional amendments. If
not a legal logic—such as section 38—then a political logic, such as Meech
Political logic also precludes
another recently rumored solution to the "deadline problem":
retrospectively dividing the Accord into two separate packages—section 38
amendments and section 41 amendments. According to this senario, the Prime
Minister could then recommend that the former be proclaimed as law, since eight
of ten provinces with more than ninety percent of the population have approved
them. The section 41 amendments could remain "alive", since they are
not subject to any formal time limit.
While this division is probably
what should have been done at the outset—in June, 1987—it is much too late to
do it now. How many times have Meech critics been told that the Accord is a
"seemless webb," to be accepted or rejected intact. For governments
suddenly to reverse themselves on this issue would be perceived as a
hypocritical and self-serving attempt to win by trickery what they appear to be
losing in the political arena. It would further poison the well of public
opinion and further divide the country.
The lesson for the future seems
clear. At a minimum, future proposals to amend the Constitution must not mix
section 38 and section 41 type amendments in a single "package".
Serious consideration should be given to adding a time limit to the section 41
amending formual. It's omission was probably an oversight in the first place.
More generally, the very concept of a "package" approach to
constitutional amendments may no longer be politically acceptable. This type of
constitutional deal-making--consumated by eleven first ministers, behind closed
doors, and then presented as a fait accompli—is a hangover from the
The Charter has created the
perception that the Constitution is no longer the exclusive preserve of the
First Ministers. As the opposition to Meech Lake has so clearly demonstrated,
there are now many groups in Canadian society who see themselves as
stakeholders in the "new" constitution. These "Charter Canadians,"
as they have been labelled,3 are not going to accept exclusion from
future constitutional changes. While the initiative for proposing
constitutional amendments will still rest with Canada's eleven first ministers,
they will have to defend any future changes in a public process that allows all
interested parties to participate in a meaningful manner.
1. For purposes of economy, when I
say "the Constitution," I am referring to the Constitution Act,
1982 only. The Constitution Act, 1982 is only one part of the Constitution,
2. See Gordon Robertson,
"Meech Lake—The myth of the time limit," in the Supplement to the IRPP
Newsletter, vol. 11, No. 3, May/June, 1989.
3. See Alan Cairns, "Citizens
(Outsiders) and Governments (Insiders) in Constitution-Making: The Case of
Meech Lake." Canadian Public Policy (1988), vol.14; pp.