At the time this article was
written Glen Clark was a Member of the British Columbia Legislative Assembly
and Chris Harris taught Political Science at Simon Fraser University in
Burnaby, British Columbia
It is evident that Canada is
presently in a constitutional crisis that is perhaps the most serious in our
country's history. The circumstances surrounding the failure to obtain
ratification of the Meech Lake Constitutional Accord bring into serious
question the manner in which we should approach constitutional reform in
future. The purpose of this short article is to focus on how the province of
British Columbia should approach the process of constitutional revision in the
Although there have been many
misunderstandings about both the purpose and the substance of the Meech Lake
Accord, in large measure its failure came about as a result of problems with
the process of constitutional reform, rather than objections to any specific
clause. Arguably, if the Meech Lake debacle has taught us anything, it is that
from the perspective of the public, the process undertaken was seen to be
illegitimate. The fact that the requirements for constitutional amendment are
set out in Part V of the Constitution Act, 1982 is not sufficient answer
to those who believe that the process itself was, nevertheless, fundamentally
flawed. The difficult task ahead is one of trying to address the need for
constitutional renewal within the strictures of the present amending formula
while, at the same time, attempting to bring the public into the process. This
presents a very challenging problem.
Four aspects of the Meech Lake
experience should inform our thinking about future attempts at constitutional
change: 1) A number of the problems which occurred, did so due to conflicting
and almost irreconcilable public demands made by respective provincial
political leaders, in advance of the initial Meech Lake agreement; 2) There was
often substantial incongruence between the goals of individual provincial
politicians and those of their respective publics; 3) Sole reliance on elite
accommodation via the process of executive federalism to arrive at tradeoffs
ultimately proved to be illegitimate in the eyes of many of our citizens; 4)
The public now expects, and indeed demands, the right to participate through
some form of genuine input in future rounds.
British Columbia can draw some
lessons from the circumstances surrounding the failure of the Meech Lake
Accord. In particular, the province has never demonstrated genuine concern
about the "process" by which constitutional positions are developed.
As well, throughout the period during which British Columbia has been a party
to Confederation, its attitude toward the federal government in relation to
constitutional matters has always been marked by a high degree of antagonism.
This adversarial posture has served
two purposes. First, it has been useful in attempting to extract greater
provincial jurisdictional authority at the expense of federal power. Secondly,
it has provided a convenient foil to divert public attention from problematic
Historically, as R.M. Burns noted
almost twenty years ago, "British Columbia has been remarkably consistent
in its attitude to federal issues and relationships."1 From the
very beginning, tension existed between federal and provincial politicians.
During the first ten years of British Columbia's provincehood, the demand from
Victoria was for the "fulfillment of the terms of union."2
Later, particularly during the premiership of Duff Pattullo, this changed to a
campaign for "better terms"3 for British Columbia in
Confederation. More recently, the argument has been that British Columbia does
not receive its fair share.
Norman Ruff has noted that, despite
changes in rhetoric or language, successive provincial governments have used
"common arguments concerning the province's position within
Confederation"4 and have successfully used those arguments to
"gain domestic electoral advantage."5
With respect to constitutional
matters in particular, British Columbia premiers have tried to play to the
populist political sentiment of the province's population. Importantly, the
positions they have taken have largely been developed by politicians and
bureaucrats with little or no genuine consultation.
In one well-known instance, Premier
W.A.C. Bennett argued that all boundaries between the other western provinces,
as well as those in Atlantic Canada, should be eliminated so as to create a
five-province Canada.6 This "reorganized" Canada would
have been one in which each of the five provinces, irrespective of population
size, would have been granted the same powers in a reformed Senate as well as
in the process of constitutional amendment.
Arguments for a five-province
rearrangement of Confederation were reformulated by Premier W.R. Bennett in
1976. He argued that a "five-region" approach should be taken whereby
British Columbia would be treated as a separate region distinct from the rest
of Western Canada and equal to Quebec and Ontario in any agreed upon
constitutional amending formula.7 In addition, he argued for
explicit representation on such federal bodies as the Supreme Court of Canada,
the Board of Directors of the Bank of Canada and the governing boards of a
number of federal crown corporations.8 Although, this position was
not ultimately maintained, it represents one more instance in which the B.C.
contribution was primarily directed to focusing on its rather unique claims.
The position of the current British
Columbia government is consistent with those of its predecessors.
Notwithstanding its relatively co-operative attitude at the time of the Meech
Lake round, it has since reverted to a more traditional adversarial posture.
Its present stance is one that emphasizes the need for a dramatic financial
redistribution of power from the federal to provincial governments, the ending
of federal involvement in jointly-funded programs, and a demand that the
federal government get its "house in order". At the same time B.C.
rejects completely new federal initiatives to raise revenue.9 Once
again, the position taken by the present government has not had the benefit of
public consultation. Furthermore, the recent decision to rely upon a
"Cabinet Committee on Confederation" to work out B.C.'s
constitutional position does not appear to address this concern.
"fed-bashing" has long been a favourite pastime of British Columbia
premiers. Indeed, this has assisted a number of governments in their
re-election strategies. Unfortunately, at this critical juncture in Canada's
constitutional history, this approach is at best unhelpful and at worst highly
Canada now finds itself in a
situation where there seems to be little agreement among both the politicians
and the public at large over what kind of country Canada should become in the
future. This problem is complicated by an apparent lack of consensus both
within "English-speaking Canada" as well as between Quebec and the
The situation is further
exacerbated by the need to work within the confines of the present amending
formula (with its reliance on the imperatives of executive federalism) while at
the same time bringing the public into the process. These realities clearly
call for new thinking as to the manner in which we undertake the "next
round". Failure to learn lessons from the Meech Lake experience could have
potentially devastating consequences for the future of the constitutional
reform process and possibly for Canada itself.
The former approach – that of
determining the province's constitutional position in a vacuum without public
input and to suit the respective political agendas of incumbent premiers --
must be jettisoned before the provincial government goes into the next round.
The provincial government should not proceed in the next round simply by taking
its own agenda into closed rooms and bargaining for its support.
To the extent that the problems
which arose during the Meech Lake ratification process related to the lack of
public support, in the face of positions taken by their political leaders, the
method by which the public is brought into the process should be addressed. It
is not necessary that our political leaders view their choices as being between
"leading" or blindly "following". Rather, it is necessary
to develop a dynamic that represents a creative synthesis between the two.
There are many people among the general public who want to participate in
thinking through the alternative options – and they should be given the
opportunity to do so. We submit that a number of principles should guide the
province as it undertakes its task in the future.
First, the provincial government
should take all necessary steps to consider its position carefully, and should
refrain from taking hard positions that unduly limit the opportunities for
creative constitution-making. To say, for instance, that "anything Quebec
`gets', every other province must also `get'," is to unduly limit the
opportunities for creative constitution-making. Such a hard and fast approach
fails to take into account that a creatively-drafted constitution may well
involve degrees of assymetry in Canadian federalism. Arguably, this position,
initially taken by Premiers Vander Zalm and Getty prior to the Meech Lake
agreement, was partly responsible for the failure to find an amending formula
that could ultimately meet Quebec's insistence that it have a constitutional
veto with respect to changes in federal institutions without, at the same time,
creating undue constitutional rigidity and thereby making the prospect of
further constitutional change in the future next to impossible. Hence, from the
outset, British Columbia should avoid boxing itself into what are, in effect,
non-negotiable corners. The B.C. government should decide in advance that its
role is to assist in finding solutions, rather than add to problems that are
already potentially insurmountable.
Secondly, while any constitutional
resolution (if one can be found) will undoubtedly come about through the
process of executive federalism (and bargaining), some lessons should be
learned from the Meech Lake experience. Most significantly, we should
understand by now that if politicians cannot bring the public along with them
in the aftermath of their bargaining, the deal may ultimately unravel. Hence,
there should be a process for public input into the general debate about
constitutional change before formal bargaining begins. The government
should, however, point out to the public that, at the bargaining table, there
may be limits to what it is able to achieve.
One way of bringing the public into
the process of constitutional reform is to establish a provincial body whose
purpose is to seek out and listen to submissions from interested members of the
general public. Such a body would also have an educative role and could be
either in the form of a special legislative committee, or alternatively, a
provincially-appointed commission. In either instance, we are of the view that
it should involve provincial politicians from both of the main political
parties in the British Columbia Legislative Assembly, and that it should see
its task as an absolutely non-partisan one. It should also utilize specialized
academic knowledge with respect to the problems of constitutional change in
This proposal is, of course, not
unique. Various types of consultative bodies with respect to this matter have
been established by the federal government and the provinces of Quebec,
Ontario, Manitoba, Alberta, and New Brunswick. It is our view that British
Columbia would also benefit from such a process.
Our purpose in recommending the
creation of a consultative body to gather public opinion is, quite simply, to
increase public understanding and assist in building consensus. The necessity
of avoiding partisanship cannot be over-emphasized. The development of British
Columbia's position and the subsequent fate of any agreement which may be
ultimately reached between Canada's various governments must not depend on the
popularity of the Premier of the moment. Hence it is incumbent upon the
political leadership of both sides of the Legislative Assembly to encourage
co-operation between the parties on this issue. In short, this should be seen
as a process of consensus-building.
The failure of the Meech Lake
Accord – along with the perceived failure of the amending process itself –
present us with substantial challenges. Much of the misunderstanding and
mistrust which enveloped the Meech Lake debate could have been avoided if
Canada's political leaders had recognized early enough that the old processes
of elite accommodation were no longer sufficient in the "Charter
era". It is critical that governments develop new approaches which
recognize the necessity for broad consultation if they are to be trusted to
make almost irrevocable decisions about our national fate. This is particularly
so in the case of British Columbia given the populist nature of its political
culture and value system. The people of the province should at least have the
opportunity to be heard and to have their views considered. Surely, this is a
minimum in a democratic society.
1. R.M. Burns, "British
Columbia and the Canadian Federation," in One Country or Two, ed.
by R.M. Burns, Montreal, 1971, p. 253.
2. R.J. Nelles, The Objectives
of British Columbia Elites with Regard to Constitutional Reform,
unpublished M.A. Thesis, University of Victoria, 1985, p. 62.
4. Norman J.Ruff, "British Columbia
and Canadian Federalism," in The Reins of Power: Governing British
Columbia, ed by J. Terence Morley et al, Vancouver, 1983, p. 290.
5. Ibid., p. 291.
6. Province of British Columbia, Proposals
of the Province of British Columbia on the Constitution of Canada,
Victoria, B.C., 1968, p. 13.
7. Province of British Columbia, What
is British Columbia's Position on the Constitution of Canada?, Victoria,
9. Province of British Columbia, Towards
a Solution: Refinancing Confederation. A pamphlet produced by the
Government of British Columbia based on remarks made by the provincial Minister
of Finance, August 1, 1990.