At the time this article was
written Christopher Dunn was a professor of Political Science at Memorial
University in St. John’s Newfoundland. This is a revised version of a paper
prepared for a conference on the constitution sponsored by the Institute for
Social and Economic Research in May 1991 at Memorial University.
The constitutional package
suggested recently by the Premier of Newfoundland consists of four distinct
elements which are considered to be a linked package. The four elements of the
Adherence to the general amending formula (GAF) with the three year
limit removed. The unanimity provision would be abolished.
Elimination of the section 47 Senate suspensive override from the 1982 Constitution
Act. This is replaced by a requirement for a double majority in the Senate
for the passage of amendments affecting culture, language and the civil law
system. One majority is Quebec and the other is the collectivity of the other
The use of a referendum following a resolution approved according to the
general amending formula or both federal houses plus five legislatures or seven
legislatures out of ten, having fifty percent of the population. The Governor
General is required to issue a proclamation after the requisite approval by referendum.
Referenda are to be used in cases of substantial amendment, uncertainty as to
public opinion, failure of legislatures to act, "or when any political,
economic or social circumstances warrant".
The use of a constitutional convention (constituent assembly). Premier
Wells is flexible on the organizational characteristics of this assembly; he is
willing to compromise on representation and choice. Half of the convention
would be chosen on a population basis; the other half of its membership would
be divided equally between provinces. As to method of choice, it would be
partly elected and partly appointed. Proposals from the convention would go
either to parliaments and legislatures under the GAF, or to a referendum.
Constitutional conventions would be used where there is lack of consensus on
how constitutional issues are to be addressed and where legislative discussions
are not an option because of lack of agreement on the structuring of proposals.
There are several attractive
elements to this package. It leaves politicians relatively more free to deal
with "real" problems like the economy, the environment and social
issues. It allows for a range of interests to be represented and provides for
broad public involvement, contrary to the unfortunate Meech process. It
provides relatively little disruption of the 1982 Constitution Act
process, which Canadians are, at least, familiar with. It purports to value
national integration. It has certain similarities to the historical process
which led to the Constitution Act, 1867, providing for a sense of
historical continuity. Lastly it has proved relatively successful where used,
namely the drafting of the American Constitution and the Bonn Constitution. Yet
I shall argue that it is not a good idea in the contemporary Canadian context.
Before I begin a critique of the
Newfoundland proposals, let me review the significance of process. The Canadian
constitutional industry is now preoccupied by process. We are attempting to
outline a set of decision-making rules which will identify who has a say in
redrafting our constitution – and when and how. Later we will supposedly decide
on the actual content of the constitutional package. It all seems so linear and
clear. However there are a multitude of subterranean factors which have not
been clearly thought out in the present debate, most notably the relationship
between process and outcome (that is, content).
These are some of the factors to
which reformers of the constitutional process must turn their attention:
Philosophic values: There should be agreement with regard to
basic values to be sought in the process. This is a simple yet complex task.
Possible values in question may be unity, debate, representation, balance,
technical competence, constitutional continuity. Yet discussion of values is
Sovereignty: The nature and locus of sovereignty must
be identified. This seems to be a missing element in the contemporary debate.
We have long worked on the assumption of parliamentary sovereignty coupled with
indirect popular sovereignty. Contemporary discussions are vague as to shifting
balance of these two items.
Responsible Government: Related to this is the discussion of the
meaning of responsible government. Responsible government can be defined
narrowly or broadly. There is a possibility that a broad definition of
responsible Government may be arrived at which takes into consideration the
aims of the more populist of reformers. But there is no consensus on this
Process determines outcome: This fact has been seized upon by the more
astute observers of the constitutional process. Quebec, for example, insists on
"nation-to-nation" discussions coupled with a continuation of the
current amendment procedures because it wants to be relatively certain of the
outcome. Those who push for a greater element of populism in the constitutional
process may be betting that this will beget sympathy for strong central
government. We have to have some general picture of outcome before we start
dealing with process.
Process affects the degree of
change: Certain processes,
for example executive or legislative federalism, are more likely to yield
proposals for incremental change than are other processes, like constituent
assemblies. We must have a fix on the degree of "shake-up" we want in
our constitutional arrangements.
My observations on these factors
are as follows. I contend that the primary value we ought now to be addressing
is national unity. The locus of sovereignty should of course be more clearly
with the people – especially at the consultation stage. This was a "lesson
of Meech." There is also a possible public role in terms of initiation.
Responsible government is something which should be protected in this current
process. Cabinet government and increasingly strong legislatures have proved
durable and valued elements of the Canadian way. They should be maintained and
strengthened in this trying time. They will surprise us with their vigour. Let
us not have lay people negotiating the actual details of the constitution. As
for process and outcome, let us undertake a process which is targeted toward
the main problem here: Quebec. This is a Quebec round with a vengeance. It will
probably end up, short of separation, with a new type of division of powers
between Quebec and the "rest of Canada" (ROC). Let us also not muddy
the waters with a wider range of constitutional changes. I argue constitutional
changes are better done seriatim. Yet they should also be done so that
measures to alleviate the alienation of the general public and of Canada's
aboriginals are given pride of place in upcoming constitutional reforms.
The Newfoundland process proposals
do not clearly enunciate many of these subterranean issues. The implications of
Newfoundland's proposals must be clarified and critically examined.
Premier Wells emphasizes debate
("dialogue") as a primary reason for choosing the constituent
assembly idea. However this is highly improbable; Quebec has denounced the
constituent assembly idea. It has chosen its preferred approach in
Bélanger-Campeau: legislature committees for referendum-drafting and
negotiations with the rest of Canada, and ultimately a referendum on
sovereignty (or renewed federalism). A two-stage process seems inescapable if
Quebec maintains this stance, which seems very probable. Paradoxically, such a
process may even be less destabilizing than past ones in which Quebec has lost
face by submitting initial agendas for English Canadian "approval"
and having them rebuked.
Wells speaks often of popular
involvement in the constitutional process. However he has not given the people
of his own province an opportunity to speak to a made-in-Newfoundland
legislative committee or constitutional commission. The constitutional industry
is a one-man show in Newfoundland. Thus both popular sovereignty and
broadly-defined responsible government are given short shrift. He maintains
that provincial committees or conventions are likely to be (1) overly
provincialist and (2) not conducive to a national debate. The provincial "Meech
Committees" of course showed this first contention to be false. As for the
second, I intend to demonstrate later how they may in fact be essential
elements of a national debate.
Mr. Wells understands that process
determines outcome. Implicit in his January 1991 talk at the University of
Calgary was a belief that the "remainder of Canada" outside Quebec
will accept only symmetrical federalism ("equal jurisdiction for all
provinces") and a strong federal government. However, a constituent
assembly may be the wrong way to ensure this. It will muddy the constitutional
There are significant disadvantages
to the Newfoundland package. One is that constituent assemblies tend to work
best where there is significant consensus on the nature of needed political and
constitutional change. This is plainly not the case in Canada. Another is that
a constituent assembly does not necessarily ensure the avoidance of
constitutional impasse; on this point Mr. Wells demonstrates a willing
suspension of disbelief. There may be significant disagreements on the methods
of choosing members of the convention, and disagreement on the linkages of the
convention to other elements of the constitutional process.
There are other problems with the
Newfoundland package. To those dissatisfied with the seemingly interminable
Canadian constitutional process, the lengthy discussions of a constitutional
convention may be just as aggravating. Elitist constitutional conventions might
be just as alienating an experience as was the so-called "Meech
Process". A constitutional convention is complicated by its very nature:
it would be hard to explain to the public and even to the members of the
convention itself. As well, it may be unrealistic to expect convention
participants to digest the mountains of material which are unavoidable parts of
Lastly it weakens the legitimacy of
federal and provincial legislatures. It implies that representative and
responsible government have failed and are unequal to the task(s) before us. If
I read the public mood correctly, it calls not for abolition of these two
bulwarks of our political system, but for additional measures of direct
democracy and consultation.
Finally, Newfoundland may simply be
the wrong province to take the lead in new constitutional proposals. Quebec
will simply not forget its role in the demise of the Meech Lake Accord. Mr.
Wells persists in an unrealistic call for the Senate, albeit reformed, to be
the major protector of Quebec's distinct status, completely ignoring the role
of the Quebec state.
A number of recommendations suggest
themselves. A basic starting point is to identify the major national crises we
are facing and to act accordingly. There are three: the duality
(French-English) crisis, alienation from the process and the aboriginal crisis.
There is also a domestic future of democracy in Newfoundland.
1) The Duality Crisis: At
this point, two-stage negotiations seem unavoidable; perhaps we should make a
virtue of necessity. We should structure a federal version of Bélanger-Campeau.
This would, like in Quebec, involve the opposition parties, involvement in the
choice of terms of reference and membership for a special parliamentary
commission or committee. Membership would consist of both politicians and
non-politicians. It would be advisable to have provinces involved also, sending
representatives from their past or present constitutional committees. (Spicer
might participate as well.) This arrangement would respond to multiple needs:
national debate, legislative vitality, federal-provincial dialogue and use of
the post-Meech public consultations. It would allow some consensus to develop
in English Canada regarding acceptance or refusal of Quebec demands, which is
in itself another need in the upcoming constitutional talks. Federal-provincial
diplomacy should then enter the picture at the negotiation stage. Approval
would be by the normal amendment resolution mechanisms of the Constitution
Act, 1982 (an approach that Quebec agrees with) but the rest of Canada
needs help. We do not live and breathe constitutional politics the way our
Québéc compatriots do. We need a special federal-provincial fund to hold
conferences, have speakers tours, issue special publications and videos. We
should not be strangers to the process, as was the familiar complaint from the
Meech era. This educative function becomes especially relevant in the second
stage of my proposed constitutional process.
2) Alienation from the Process:
The second crisis we are currently facing is alienation from the process. This
can be partly addressed by a solemn commitment of governments to widespread
public consultations before they initiate major constitutional changes.
Quasi-unanimity in the amending
formula seems to be the only way of responding to both English Canadian
Nationalists (who demand provincial equality) and Quebec Nationalists (who
demand a Quebec veto). Difficulties in achieving consensus are generally
overrated. The record of amendments prior to 1982, and of executive federalism
in general, are indicative of consensual behaviour. Quasi-unanimity can also be
dovetailed with a future populist element in the amendment process:
consultations before negotiations. National constitutional referenda should
generally be avoided. If deemed absolutely necessary, they should be
non-binding, for the obvious reason that binding referenda could allow English
Canada to override Quebec on divisive issues.
Parliament and the legislatures
should ultimately abolish the time limit for approval of constitutional
amendments. It seems to serve little purpose except to put needless pressure on
federal and provincial decision-makers. Citizens however in future should be
able to initiate or force decisions on constitutional matters by petitions
which attain a sufficiently high threshold of numbers.
3) The aboriginal crisis:
The aboriginal royal commission will no doubt consider major changes:
self-government, a national treaty, or special parliaments. The work of this
commission must dovetail with that of the above constitutional discussions. The
royal commission will have a special role to play if a separation scenario
4) Finally, to turn to
Newfoundland. The Premier should convene a special constitutional legislative
committee or constitutional commission as soon as possible. Newfoundland should
be brought into the mainstream of constitutional discussions. If not we will be
increasingly marginalized, both as citizens and as a province.
All of this may seem overly
negative regarding Mr. Wells' constitutional package which is, after all, a
welcome and fresh view of how constitutions should be made. It is,
nevertheless, fraught with practical and philosophical difficulties. Democracy
is implied but not delivered. The Newfoundland package, in my view, is an idea
whose time has not come.