At the time this article was
written Gary Levy taught political science at the University of Western Ontario.
He was also Editor of the Canadian Parliamentary Review
Since the demise of the
constitutional amendments known as the Meech Lake Accord in June 1990 several
legislatures have begun to address the principle flaw in the Accord – the lack
of perceived legitimacy in the constitutional process that led to its adoption.
In Manitoba and Newfoundland, for example, the membership of legislative
committees has been extended to include non parliamentary experts. In Quebec a
special Commission on the Political and Constitutional Future of Quebec brought
together federal and provincial legislators along with representatives of
business, labour, and other interests. Another method of extending
constitutional consultation was tried recently in Ontario. The Select Committee
on Ontario in Confederation organized a three day Constitutional Conference.
The meeting, held from October 17-19, was dubbed by the media as a "trial
constituent assembly". Its real purpose, according to the organizers, was
to augment the traditional process of public hearings thereby helping members
of the committee in their deliberations and subsequent preparation of a report.
This article looks at the organization of the conference and considers the
possibility of wider consultation in the process of constitutional amendment in
The Select Committee on Ontario in
Confederation was appointed in the fall of 1990 and is made up of legislators
representing all three parties. In July 1991 it decided to sponsor a Conference
bringing together a wide variety of Ontarians for the specific purpose of
discussing the constitution. An organizing committee headed by Dennis
Drainville, Chair of the Select Committee was established to plan the
conference. The committee also included Gilles Bisson (NDP), Charles Harnick
(PC) and Yvonne O'Neill (LIB). One of its first decisions was to engage a
consulting firm, Enterprise Canada of Toronto, to co-ordinate the conference.
Format and Selection of
The format of the conference was
not unusual. It opened on Thursday evening with an address by Premier Bob Rae
and a reception at Hart House, University of Toronto. In his remarks Premier
Rae urged delegates to approach constitutional issues with an open mind and be
prepared to change their position.
The following day began with a
plenary session at which Hugh Mackenzie of Enterprise Canada outlined the
process to be used during the conference. Delegates were assigned to two of
eight workshops. These included sessions on: the Fundamental Characteristics
and Values of Canada; The Charter of Rights and Freedoms; Aboriginal Issues;
Constitutional Change and the Economy; Quebec's Future in Canada; The Division
of Powers; National Institutions and the Political System; and the Process of
Four of the workshops were held at
Hart House, the others in committee rooms in the main Legislative Building.
Each workshop was chaired by a professional "facilitator" an
individual with experience in directing seminars but without any particular expertise
on the substantive issue of constitutional reform. The "facilitator"
was assisted by two employees of the Legislature: a "recorder" from
the Research Service and a Clerk. Each workshop chose a rapporteur whose duty
would be to synthesize the discussion and report on the conclusions to the full
Each workshop was held once in the
morning and again in the afternoon so that all delegates participated in two
different sessions. Simultaneous translation was available for four workshops
in the morning and a different four in the afternoon. Two morning sessions and
two afternoon sessions were broadcast on television.
On Friday evening a reception and
dinner were held for delegates followed by short addresses by the leaders of
the two opposition parties, Murray Elston of the Liberals and Michael Harris of
the Conservatives. This was followed by a panel discussion chaired by Judge
Rosalie Abella and consisting of Judith Andrew, Director of Provincial Policy
for the Canadian Federation of Independent Business, Diane Haskett a lawyer
from London Ontario, Peter Leibovitch, president of the Simcoe and District
Labour Council, Gordon Peters, Ontario regional chief and vice chief of the
Assembly of First Nations, and Jean Tanguay of Ottawa, president of the Association
Canadienne-francais de l'Ontario.
On Saturday the conference
concluded with reports from each of the workshops, statements from the floor by
individual delegates and closing remarks by Mr. Drainville.
One of the most difficult aspects
of the conference was the selection process. The total number of delegates,
130, was chosen arbitrarily but reflected numbers that could be reasonably
handled. This figure included the twelve members of the Select Committee on
Ontario in Confederation and fifteen other MPPs, five from each party. In
addition each party was entitled to nominate twenty other individuals. To fill
the remaining places the organizing committee sent letters to scores of special
interest groups in Ontario asking them to submit names of 3 or 4 individuals
they would like to see participate in the conference. From this list of several
hundred names the final forty-three delegates were chosen by the Committee. In
addition all provinces and territories were invited to send one observer. Each
of the federal political parties and a number of aboriginal organizations were
also invited bringing the total number of observers to about twenty. Delegates
were supposed to attend in their capacity as individual Ontarians and not as
representatives of political parties or interest groups.
The conference was a relatively low
budget affair. Delegates were not paid but travel and accommodation costs for
persons coming from outside Toronto were reimbursed. The total personnel
required to organize the conference was about 40 with 25 coming from the
permanent staff of the legislature. Expenses for the conference were estimated
at about $400,000.
Observations on the Discussion
The background material for the
workshops, prepared by the Research Service of the Legislative Library, broke
down each of the eight issues into three sections – Where are we? Where do we
want to go? How do we get there? These were followed by a list of questions for
discussion. (What are the fundamental characteristics which define Canada?
Should Parliament and Legislatures have the power to override rights and
freedoms guaranteed in the Charter of Rights and Freedoms? Should
aboriginal people have a guaranteed number of seats in the House of Commons,
the Senate, and/or the provincial legislatures? Should provinces have the right
to secede from Canada? Is it important that national standards in certain areas
be maintained? Should the Senate be reformed or abolished?
One delegate observed that
discussion in the workshops was a bit like a game of Jeopardy. Everyone has an
answer. It all depends on who gets to the button first.
Discussions did not always follow
the route laid out in the working papers. But the format had a great advantage
over the traditional type of legislative committee where members spend most of
their time listening and asking the odd question to special interest groups
instead of publicly discussing the issues among themselves. Such conversations
are reserved for the closed drafting sessions. While such a process may be
appropriate for ordinary legislation that will eventually be subject to party
discipline one must ask if the same process is appropriate for constitutional
amendments. Surely there is no Liberal, Conservative or New Democratic position
as to whether the Senate should be elected or if representation should be
equally divided among all provinces. This is an issue on which all Canadians
have an equal interest and the traditional process has been unable to reflect
At the Constitutional Conference legislators
and ordinary citizens exchanged views on an equal basis. While the views were
varied one had the impression that given enough time to discuss the issues some
agreement could be found on most items. Of course there were delegates who had
particular axes to grind such as the individual who wanted to repeal laws that
allow funding for Roman Catholic education in Ontario and to amend the
constitution to prevent "preferential" treatment of any religious
group. He carried this idea with him from workshop to workshop and usually
managed to provoke a lengthy discussion on what has always been a volatile
issue in Ontario politics.
In many ways the most interesting
workshops dealt with the process of constitutional amendment for that is what
the conference was really about. A preliminary opening round of statements
indicated general dissatisfaction with the process used for the Meech Lake
Accord as well as with the present process. Not surprisingly, most people were
philosophically attracted to the idea of a constituent assembly convened for
the express purpose of examining constitutional changes. Further discussion
revealed several difficulties with constituent assemblies including the way
they are selected, the difficulty of ever accurately reflecting the interests
of the entire society and the non binding nature of their conclusions.
Delegates then turned their attention to the use of referenda and whether they
are a better way of giving citizens a sense of ownership of the constitution.
But here too there were difficulties ranging from the framing of the question
to the real legitimacy of amendments passed with 51% of the popular vote. A
third option, the use of expanded parliamentary committees, was considered and
it seemed to hold considerable attraction for many delegates.
Problems and Prospects for the
The Ontario Constitutional
Conference solved no problems but did fulfil its limited objective of providing
input to the Committee on Ontario in Confederation. It also served an important
educational function by giving a number of Ontarians the experience of trying
to make decisions acceptable to an extremely diverse group of individuals.
Perhaps those who attended will be a little more understanding of the problems
faced by politicians on a daily basis. For many it was also the first time they
found themselves confronted by articulate spokesmen for the aboriginal
community. In the long term such experiences can only be beneficial but what
about the short term problem of finding an answer to the present constitutional
dilemma? Does the Ontario Constitutional Conference indicate the way of the
The main difficulty with this
approach, aside from the issue of representativeness, is the lack of focus. It
was unfortunate that most workshops did not discuss more directly the federal
government's constitutional proposals released on September 24. Some delegates
had copies of the proposals and certain points of agreement did emerge during
the discussion. For example there appeared to be a good deal of support for
some recognition of Quebec as a distinct society. There was also a wide degree
of consensus in more than one workshop on the inherent right of aboriginal
people to self government. The federal proposal, with its ten year time-table
was seen as insufficient.
But these were exceptions and most
discussion took place in splendid isolation of the federal proposals.
Regardless of what one thinks of the proposals is it not too much to ask a
random group of ordinary Canadians, be they students, teachers or delegates to
a Constitutional Convention, to come up with constitutional proposals starting
only from a set of questions or abstract principles? Such an approach is
unlikely to bear fruit. It makes more sense to ask such a group to discuss,
criticize perhaps even vote on specific proposals put forth by one or more
legislature. There would be disagreements but what are we afraid of? Given
time, proper procedures and a set of proposals to begin with does anyone really
think that a representative group of Canadians cannot find reasonable
compromises on most issues?
The challenge of the present is to
find a process to allow the people, not to draft constitutions, but to consider
and pronounce upon constitutional proposals with the expectation that their
decision will be followed by the legislators who have the formal duty to pass
At the provincial Premiers meeting
in August 1991 three leaders, Clyde Wells of Newfoundland, Bob Rae of Ontario
and Gary Filmon of Manitoba, were reportedly in favour of some form of
extra-parliamentary assembly. Subsequently elections in British Columbia and
Saskatchewan have returned New Democratic governments bringing to five the
number of provinces likely to favour some form of extra-parliamentary process
for considering constitutional amendments. If two more provinces can be brought
on side perhaps these seven provinces with 50% of the population could convene
a single extra-parliamentary body to examine the federal proposals or some of
their own. If this body could agree on certain amendments and if the individual
legislatures followed through by enacting the amendments the federal government
would then have, under the existing constitution, three years to accept or
reject the amendments. This approach is also consistent with Quebec's position
about wanting "a binding" offer before re-entering constitutional
Are we on the verge of stumbling
across a key to unlock the constitutional stalemate that has prevailed since
1982. If so, the meeting of the Ontario Constitutional Conference may prove to
have been a first small step towards a return to constitutional sanity and
legitimacy in this country.