At the time this article was
written Allan Blakeney taught law at the College of Law, university of
Saskatchewan in Saskatoon. He was Premier of Saskatchewan from 1971 to 1982.
This is an edited version of an address to the institute of Canadian Studies at
John’s Hopkins University, Washington, March 4, 1991.
Canadians are always talking about
the Constitution. Sometimes the decibel count is low. Sometimes it is high.
Currently it is very high. The present difficulties can be traced back to the
constitutional settlement of 1980-82. Canada amended its constitution in 1982
to provide an amending process which ended the embarrassment of using the
Imperial Parliament in London as the amending vehicle. We also added a Charter
of Rights and Freedoms and made other changes respecting the rights of
aboriginal peoples, and the equalizing of financial capacity of provinces. The
changes were, eventually and reluctantly, accepted by all provincial
governments but the Quebec government. These events have produced two radically
differing views of how they were brought about. Leaders in Quebec declared that
Quebec had been excluded from the Constitution by "English Canada."
Provinces like Saskatchewan
regarded the constitutional crusade that ended in 1982 as almost wholly a mission
of Pierre Trudeau. Many Saskatchewan MPs and the Saskatchewan government
opposed it as vigorously as we could until the final days, when we saw no
alternatives but to agree. The changes were supported in the House of Commons
by 73 of the 75 Quebec MPs. As we saw it, and still see it, if the government
of Quebec was excluded (and it is certainly true that it did not agree to the
proposed changes), the excluding was done primarily by Mr. Trudeau and the
Quebec MPs. This was not a French-English issue but rather one of two views of
Quebec in Canada, both views coming from Quebec leaders.
One, Pierre Trudeau, had been
elected in 1980 with the largest number of votes ever gained by any party in
any Quebec election, federal or provincial. The other, René Lévesque had won
two successive provincial elections in 1976 and 1980 with respectable
This brings us to recent events. By
1985, both the federal Liberals and the Parti Québécois were gone from office,
replaced respectively by Progressive Conservative Brian Mulroney in Ottawa and
Quebec Liberal Robert Bourassa.
Mr. Mulroney promoted the Quebec
view of the 1982 events, that Quebec had been excluded from the Constitution by
English Canada – and set out, in his words "to make Canada whole
again". He launched the campaign for the Meech Lake Accord. Few projects
have ended more disastrously.
I will not outline the entire
contents of the Meech Lake package. I mention three. One, there was a provision
for recognizing Quebec as a "distinct society" and interpreting the
constitution in that light. Two, there was a limitation on the ability of the
federal government to launch new programs which are paid for by both federal
and provincial governments – shared cost programs in our constitutional
parlance. Three, there was a change in the formula by which the constitution
can be amended. The constitution already has a short list of provisions which
can be changed only with the consent of the House of Commons and the
legislatures of all 10 provinces. Meech Lake would have added to this list. In
particular it would have required that any reform of the Canadian Senate have
agreement of all the provinces.
The Meech Lake constitutional
proposal failed to receive approval of all provincial legislatures in the
required three year period. Legislatures in Manitoba and Newfoundland did not
Failure of Meech Lake
With the wisdom of hindsight we can
see that the Meech Lake effort failed because the architects failed to
appreciate fully the changes in the Constitution that had been made by the Constitution
Act of 1982.
Before 1982 the Constitution was
changed by the House of Commons and the Senate passing resolutions and sending
them off to London to be passed by the Imperial Parliament as amendments to the
British North America Act of 1867. The custom – convention to use the
lawyers word – was that if the changes affected provincial law-making power
then provincial governments had to consent. The operative word here is
governments. This consent could be from a cabinet or even a Premier. It was
very informal. Rumour has it that Alberta gave consent to constitutional
changes to make unemployment insurance a federal rather than a provincial
responsibility by a phone call from the then Premier Aberhart.
Before 1982, the Constitution was
almost wholly a set of rules that (1) regulated the institutions of government
– House of Commons, legislatures, courts, and (2) divided law-making powers
between federal and provincial governments. Ordinary citizens did not look to
the Constitution to give them rights. Their rights were set out in the Canadian
Bill of Rights and the provincial Human Rights Codes or Bills of Rights. These
were special statutes but were not part of the formal Canadian Constitution.
The Constitutional changes of 1982
added the Charter of Rights and Freedoms and set our specific rights for women,
disabled people, aboriginal people, language minorities, multicultural groups –
the list is long. Many of these people felt that their rights were included in
the 1982 Constitution after a hard battle on their part.
Many of these groups had taken part
in the intense lobbying which surrounded the joint Senate-Commons Committee
hearings – hearings which were nationally televised – as the draft charter was
debated and changes proposed almost daily.
Now in 1987 comes Meech Lake. The
architects apparently assumed that they could carry on in the informal pre-1982
way, where, effectively, only Parliament and Provincial premiers were involved.
They appeared to assume that because the Meech Lake Accord had been agreed to
by the Prime Minister and all ten provincial premiers that it was a done deal.
But the Constitution now required that each provincial legislature approve the
changes. The consent of a provincial premier or the provincial cabinet was not
enough. Members of legislatures tend to get nervous when they are called upon
to pass something that they feel their voters oppose. And opposition to the
Meech Lake package was growing. So there was some hesitation. During the hesitation
period, three governments were voted out, New Brunswick, Manitoba and
Why did public opposition grow?
Primarily, I believe, because there was a public perception that the Accord was
a back-room deal by 11 men who were meddling with "our constitution
without consulting us". The women, the multicultural and the aboriginal
groups who had acquired a strong sense of ownership of the Constitution in 1982
felt that they were being robbed of their rights by a clandestine deal.
So, the requirement of formal
legislative approval, and the growing opposition of groups who felt that their
1982 rights were being compromised, eventually doomed the Accord. Premier
Filmon of Manitoba found strong opposition to the deal among his voters. His
legislative members were looking for ways to delay the process. And they found
One of the groups who felt that
their constitutional concerns were being ignored was aboriginal peoples. One of
the members of the Manitoba legislature was an aboriginal leader, Elijah
Harper. He skilfully used legislative rules to delay the legislative processes.
The lessons to be learned from the
Meech Lake failure seem to be two: (1) No wholesale amendment is likely to
succeed in the near future unless it responds to the concerns of most of the
interest groups in one package. Thus Quebec's concerns, aboriginal matters,
senate reform (dear to many people of the hinterland) assurances that the
Charter of Rights is not weakened – will probably all need to be addressed. Not
an easy task. (2) There will need to be a great deal more public involvement.
Public hearings, perhaps plebiscites would seem to be called for. Certainly
there will need to be many more opportunities to lay the issues before the
public. The public must, in due time, come to believe, not that a secret deal
is being struck, but rather that the politicians and others are talking the
issues to death and should get on with it. Only then will the public permit a
final settlement, inevitably a compromise. Where does this leave today's
Strength of Quebec Nationalism
The first point to be made is that
there has been a sharp reaction in Quebec to the failure of the Meech Lake
initiative. Even though much of the opposition to the Accord was based on other
grounds – resentment by aboriginal peoples that their concerns were not dealt
with, fear that future shared cost programs were all but doomed, opposition to
making the constitutional amending formula even more rigid and thus making
impossible needed Senate reform – to name but three – the rejection of Meech
Lake was widely regarded in Quebec as a rejection of any recognition of Quebec
as a distinct society.
The result has been a surge of
Quebec nationalism stronger than at any time in history. As I see it
nationalism, and particularly separatism, does not have the enthusiastic and
emotional public support that it did in the heady days of René Lévesque between
1976-80. And if you believe that no quasi-revolutionary movement such as one to
separate Quebec from Canada can succeed without a charismatic leader, then
perhaps separatism is not as strong as I suggest. But, unlike 1980, this time
the artists, the students and the other separatists of the heart in the
separatist camp are joined by a surprising number of senior business people.
This is a new breed. After the
"Quiet Revolution" of the 1960s Quebec set out to educate the
engineers, scientists, accountants and business administrators that French
Quebec so sorely lacked. Now thirty years later these people have largely displaced
the anglophone business establishment as Quebec's business leaders. This new
cadre of leaders are disgusted with the economic management of the federal
government and convinced that in a free trade environment the Quebec economy
could go it alone. These business leaders have formed close links with the
Quebec government to plan common objectives. The alliance – almost European in
its style is often called Quebec Inc.
So the fear that separation will
carry a heavy economic price tag is not so keenly felt as during the 1976-1980
period which ended in the 1980 referendum.
The Indifference of English
Canadians who do not live in French
– English Canadians for these purposes – are suffering from constitutional
fatigue. I had a predecessor as Premier of Saskatchewan who was asked what
Saskatchewan people felt about the Constitution. His reply was that if he asked
the average Saskatchewan citizen what his (or her) 100 most pressing problems
were, the Constitution would rank 101. It has moved up a bit since then, but is
not uppermost in the public mind of English Canada.
There are pressing economic
problems stemming from massive governmental fiscal mismanagement for over 10
years and now from the general recession and (perhaps) from the effect of the free
trade deal. In any case, in an economic and fiscal sense English Canadians are
suffering from a perceived prolonged lack of competent Canadian leadership.
On constitutional issues there is a
sense of weary disinterest. The Meech Lake Accord was promoted as something
English Canada owed to Quebec. There was a guilt trip aspect to the campaign –
a guilt which English Canadians did not feel, and do not feel, and now are
unwilling to accept.
So that, increasingly, we hear in
Western Canada and in Ontario comments like "well, if they want to go.
Lets get down to negotiating the divorce". This is far from pervasive. But
it is heard more frequently than anyone would have thought credible short
These are early days and it is far
too early to predict the outcome of likely future negotiations. But never had
we had such an unpromising start.
Mechanics of Negotiation
The Quebec government is currently
insisting on one to one negotiations with the federal government on
constitutional change. That course of action is doomed to fail. The Federal
government does not have any legal authority to negotiate on behalf of
Parliament and the provincial legislatures. And no Prime Minister, particularly
one from Quebec, has the moral authority to do so. It is virtually impossible
to conjure up a basis for negotiating either the separation of Quebec from the
federal union or some form of sovereignty association except by using the
constitutional structures and provisions now in place. And these have been
damaged at least temporarily by the failure of the Meech Lake initiative. It is
very likely indeed that interest groups across Canada will insist on being
consulted as they were not during the Meech Lake negotiations and that
provincial legislatures, in response to this pressure, will set up task forces
and legislative committees to provide for this consultation. This is not the
environment for delicate negotiations about Quebec demands, – demands which are
supported strongly in Quebec but little understood elsewhere. It is perhaps
possible that there may be some resort to national and provincial referendums
but these will have no legal force and may or may not be morally persuasive. No
simple way around the procedural pitfalls is evident.
What will be the outcome of the
looming confrontation? The future is not easy to predict but let me sketch a
The Go Option - The Quebec
provincial government will put forward a proposal for separation, will
negotiate it in a preliminary way with a federal government, not necessarily
the present one, and a separation arrangement will be confirmed by legal
constitutional steps involving Parliament and all provincial legislatures.
The Sovereignty Association Option
- This would be the same as the Go Option except that the end product would be
some form of sovereignty association. This I regard as the least likely option.
Sovereignty association might be achieved, but I believe that full sovereignty
for Quebec (or some area based in Quebec) will need to come first and any
association negotiated later.
The Failed Go Option - This
postulates that efforts to negotiate separation (or sovereignty-association)
run into acrimonious difficulties and a confrontation ensues. The issues to be
resolved would include boundaries, division of assets and the national debt,
use of the St. Lawrence River and seaway, east coast fisheries and on and on.
Issues enough and more to produce a deadlock. Splitting countries that have in
some sense existed for 200 years is not an easy task and we should not assume
that Canadians can achieve this result without violent confrontation where few
countries have succeeded. Canada too could fail.
The Stalemate Option - This
involves the government of Quebec putting forth its proposals and these being,
in effect, rejected. Negotiations continue. Quebec may or may not have a
referendum. But no legal basis for separation is arrived at, and the issue is
not pressed to confrontation. The result will be stalemate. At least for the
time being. An unhappy result but perhaps the best of some unpalatable choices.
It is generally agreed that
economically Quebec does well in Confederation. And in times of recession when
economic issues dominate the public agenda, there is less pressure to pursue
separation, which is a cause of the heart more than a cause of the pocketbook.
Clearly much will depend upon the deep down desire of Quebec people to be out
In some ways Canada had been a
country of sleepy accommodation prior to World War II. Happy in our state of
being not American we were like the Miller of the Dee "We envied nobody no
not we, and nobody envied us". But after World War II we enjoyed a
national renaissance spurred by pride in our wartime performance and quite
phenomenal industrial expansion. We began to develop a sense of being Canadian.
The national hospital and medical care plans and other national social safety
net measures played a major part in this. It was added to by adopting the
Charter of Rights and Freedoms in 1982. We came to know what it meant in a
positive sense to be a Canadian.
But we are finding that we have not
one but two senses of identity. The national health plans are overwhelmingly
popular in English Canada but in Quebec are regarded by many as an invasion of
provincial legislative rights – a position totally uncomprehensible to ordinary
Similarly with the Charter of
Rights and Freedoms, English Canadians have clasped it to their bosoms. Many
Québecois regard this too as an unreasonable and unnecessary invasion of
Quebec's constitutional jurisdiction.
There is no doubt that the views I
have ascribed to English Canadians are firmly held by ordinary citizens –
indeed more so than by the elites who may appreciate constitutional niceties.
What is less clear is whether the views in opposition to the national safety
net plans and the Charter of Rights are as firmly held by ordinary citizens in
Quebec as they are by the elites. Constitutional issues are issues of popular
debate in Quebec. Just how deeply views are held is less easy to assess.
Much will depend upon the deep down
desire of Quebec people to be out of Canada. As opposed to a desire that their
language, their culture and their way of life be fully respected in Canada. The
latter desire can be accommodated within a united Canada. The former clearly
I remain optimistic and somewhat
confident that this difficulty in our national life will be surmounted.
However, at times I am not sure of the basis for such confidence!