Voting on Confederation’s Makeover: Getting to the Charlottetown Accord
The major effort to change the Constitution promised by Prime Minister Trudeau in exchange for a No vote in Quebec’s 1980 referendum had produced by 1981 the Charter of Rights and Freedoms and a constitution-amending formula, but not the “entrenchment of the economic union in the Constitution” he had ardently sought, nor, most ironic of all, no buy-in from Quebec.
Quebec’s exclusion was not because the province had a separatist government but because of how the deal had been reached by the first ministers. A motion condemning the constitutional changes without Quebec’s ratification passed unanimously in the National Assembly, including support from all Liberals members. Quebec remained legally bound by the Constitution, but political disenchantment was summed up by how the province’s National Assembly symbolically invoked the Constitution’s “notwithstanding” clause for all legislation. Brian Mulroney said, “Quebec had been abandoned on the snowbank!”
In 1984 Mulroney’s Progressive Conservatives brought a change of government to Ottawa, winning the general election with organizational support in Quebec from Liberal leader Robert Bourassa. A year later Canada’s new PM and Quebec’s resurrected premier, who’d suffered humiliating elector defeat in 1976 but led the provincial Liberals back into office in December 1985, sought to complete this unfinished constitutional business. An agreement on several amendments was reached by all premiers and the PM. This “Meech Lake Accord” was a determined act by federalist Quebecers, as Prime Minister Mulroney put it, “to reintegrate the province constitutionally back into the Canadian family.”
The accord contained no surprises. It was short, incorporating points considered essential by Premier Bourassa, adjusted to perspectives of several other premiers. Recognizing that Quebec constituted “a distinct society within Canada” was one point, a statement of fact to accommodate the province’s sociological and cultural uniqueness without dishonouring the country’s other regions. A second point established the principle of equality of all provinces. A third resolved jurisdictional overlap on immigration. There was some tweaking of the amending formula for future constitutional changes. Another provision dealt with “opting out,” already an established practice since the 1960s, whereby any province could sidestep a “national program” of the federal government by creating a comparable program of its own and get funding from Ottawa to operate it. Likewise, the reality of the Supreme Court of Canada, created by an act of Parliament in 1875, would be formally entrenched in the Constitution. Finally, the Meech Lake Accord sought to constitutionalize “executive federalism” by requiring annual first ministers’ conferences, even specifying for 1988’s agenda the topics of fisheries and the Senate.
The accord was initially well received. At a University of Ottawa conference on the subject, former Liberal cabinet minister Monique Bégin held up the signature page, bearing the names of all first ministers representing different political parties, and called it “the most beautiful document in Canada.” Polling showed strong support in Quebec and across the country, too, where grateful relief greeted reconciliation of long-standing distemper over Quebec’s role in Confederation. The agreement even included the motion Parliament and all ten provincial legislatures would pass to green-light these several constitutional amendments.
At this juncture critics of “executive federalism” complained the deal had been thrashed out by “eleven men in suits in the backrooms” who also controlled the legislatures that would vote ratification. The most effective answer to this valid criticism about an insider process changing our country’s constitution should have been a national referendum to ratify the proposed changes.
The legislatures would still need to pass their set-piece motions, but the people would first deliberate on the matter and signal to elected representatives by a majority vote Yes or No whether there was public buy-in for the Meech Lake Accord. By directly asking citizens Are you in favour of implementing the Meech Lake Accord? when those who’d negotiated it were on hand to explain their agreement and when public interest was both focused on the accord and supportive of national reconciliation, the probability was that a majority Yes vote would not only speed ratification but increase the accord’s political legitimacy by the best available means for a self-governing democracy.
However, legislators had a three-year deadline, until June 1990, to ratify. Why the first ministers gave themselves so leisurely a timetable rather than a deadline commensurate with the gravity of the matter remains one of those “What if …?” speculations of our political history. Lulled into complacency by that amount of time, and simultaneously encountering the governing establishment’s short-sighted opposition to citizens voting on important issues, the Mulroney government failed to hold a national referendum. The fact there was no enabling law under which to do so was conveniently invoked by those opposed to ballot questions, which readily sealed the decision for those who assumed approving Meech Lake would be a slam dunk.
The Mulroney government would, instead of a referendum, just leave the easy matter of provincial ratification to the custodial guidance of a single federal cabinet minister. Lowell Murray, a long-time Tory backroom presence whose accomplishments were more than offset by a consistent pattern of political misjudgments, had been repaid for his allegiance to the party with a Senate seat by Prime Minister Joe Clark, then named government leader in the upper house by Prime Minister Mulroney. Now, in the context of gaining ratification of the Meech Lake Accord, he was handed the country’s most sensitive portfolio as minister for federal-provincial relations.
Premier Bourassa expected fairly rapid approval. He envisaged Quebec’s National Assembly voting to ratify Meech after all the other provinces had done so — a symbolic final act in “rejoining the Canadian family.” Senator Murray pursued his obscure backstage methods. Time passed. With nothing happening, a chagrined Robert Bourassa decided he had to kick-start the process and get the fading accord back on the public radar. Quebec’s legislative assembly thus became first to vote approval of the amendments. Elsewhere across the country, those with less than charitable views about French Canadians figured the deal must be really good for Quebec, given its “rush” to endorse it.
Steady passage of time was an enemy of ratification in other ways, too. Elections in New Brunswick and Newfoundland brought to office as premiers Frank McKenna and Clyde Wells, both of whom discovered unusual theoretical grounds to oppose the Meech Lake Accord. The Newfoundland legislature had by this time already ratified the accord, but Wells had his newly elected majority rescind the province’s motion. Now the process was actually running in reverse gear. New Brunswick’s legislature, having not yet voted on the motion and under new management with McKenna, would postpone for a couple more years.
These reversals and delays gave time for doubt to foment about the accord. Former prime minister Trudeau, rather than gratefully and gracefully accepting that Brian Mulroney and Robert Bourassa had managed to complete his unfinished business, attacked the accord. He puzzlingly claimed it “gives too much to the provinces,” yet the accord was constitutionalizing the Supreme Court of Canada, the well-established opting-out formula, confirming Quebec as “a distinct society within Canada,” ending jurisdictional overlap on immigration, and the like. Yukon and the Northwest Territories went to court claiming exclusion and prejudice, a claim not upheld yet one that caused questions that could have been addressed when territorial voters weighed such assertions in the process of debating a referendum question, had there only been one.
The three-year deadline came up in June 1990. New Brunswick’s legislature voted to affirm the accord as the deadline loomed, but by then Frank McKenna’s deliberate delay had already taken its toll on the accord and been milked by the premier for all its political nutrition. Newfoundland was still out, with Clyde Wells seemingly no longer in communication on the issue. Manitoba had a requirement for public hearings on constitutional changes, prior to them being voted on by the legislature. After all this time, the hearings had still not taken place. To short-circuit the system, so the ratification vote could occur as pages of the calendar now became hands of the clock, unanimous consent of the assembly was required. It was repeatedly denied by a lone MLA.
In desperation, before the deadline expired, marathon first minister bargaining got under way at Ottawa’s conference centre behind closed doors. Intermittent updates reported tentative progress, or word of some new problem, adding fuel to commentators’ speculations as live television coverage outside the closed proceedings captured Canadians’ anxious attention. This politically traumatizing way to amend a constitution was executive federalism’s stunning alternative to the rational and democratic procedure of putting the Meech Lake Accord to Canadian voters for open and deliberative collective approval or rejection three years before.
But because executive federalists operated in their established pattern of excluding the sovereign people, this last-ditch round of negotiations was only capable of producing more of the same. If the accord was ratified before time ran out, the now-chastened Mulroney government pledged, grievances would be dealt with in yet another round of negotiations. In this pressure-cooker atmosphere, premiers were promised constitutional amendment for a “Triple-E” Senate by 1995. Women were promised that their rights under Section 28 of the Charter would be tucked under the further protection of the Meech Lake Accord’s amendments, the way multiculturalism and aboriginal rights had been. The territories were promised a role in future appointments of Supreme Court judges. Aboriginal peoples and the territories were promised consultation on future constitutional changes. Those who felt generally aggrieved because they misconstrued how Quebec seemed to be the primary focus of the Meech Lake Accord — not understanding that its purpose had explicitly been to overcome the humiliating inability to get Quebec’s agreement to Prime Minister Trudeau’s constitutional round — were themselves now promised “a statement of constitutional recognition.” There was a nod to each complaint, a sop to every wounded feeling.
Yet even in such desperate moments, Ottawa couldn’t bring itself to allow citizens a direct vote on constitutional matters. Rather than saying a referendum would be held to approve this wide array of significant pledged constitutional amendments, the Mulroney government’s only response to the rising tide of protest about public exclusion was a promise of “mandatory public hearings prior to adopting constitutional amendments.” That didn’t mean people had to attend them, just that governments had to hold them. In the culture of executive federalism, making public meetings “mandatory” was meant to sound a note of grave intent. What was the point of going to a meeting after a finalized package of amendments had been negotiated but before elected representatives voted on them? This was, at best, a cosmetic insult to the sovereign people.
In the aftermath of the Meech Lake Accord’s three-year death throes, which caused some to recognize the embarrassing shortcoming of a national political system said to be “democratic,” three provinces took remedial action.
B.C. Premier Bill Vander Zalm assessed Canadian criticism of the closed-circuit process for ratifying constitutional change and brought forth the Constitutional Amendment Approval Act of 1991. On March 12, 1991, the premier told members of the legislature that requiring a referendum on any proposed amendment to the Constitution of Canada before a resolution for that purpose is introduced in the legislature was “a first in the country.” Vander Zalm expressed confidence that British Columbia’s law requiring direct public participation in ratifying constitutional change would be followed by other provinces. Indeed, it was.
Alberta Premier Don Getty introduced the Constitutional Referendum Act in the legislature on March 19, 1992, to enable a province-wide vote on any proposed constitutional amendments. “Before any resolution to amend the Constitution of Canada can be passed by this Assembly a referendum must be held,” explained Getty, “and it will be binding upon this Government to implement the results of that referendum.” The Constitutional Referendum Act of Alberta received Royal Assent and became law in the spring of 1992.
In Saskatchewan, in conjunction with an October 1991 general election, Premier Grant Devine included a ballot question on a similar law for his province, which voters approved. But his government was defeated and the measure didn’t become law under Roy Romanow, the new premier.
Quebec’s response was similar, but necessarily more complex given the national humiliation with failure to get even the minimum requirements of Meech Lake accepted. The province’s political leaders, with the benefit of a comprehensive referendum statute already in place, didn’t need to take this threshold step as British Columbia and Alberta did but could focus directly instead on resetting the context for Quebec’s future in Confederation. Premier Bourassa announced a period to develop a clear proposal that Quebecers would endorse or reject in a referendum on October 26, 1992. If, within that time, the federal government came up with a further package of constitutional amendments, Quebec would make it the ballot question. If there was no such proposal from Ottawa, a provincial plan would instead be the subject of the referendum and Quebecers would decide for themselves the future of Confederation.
In parts of what are today’s Canada, constitutional arrangements have been revised a number of times, transformed by such milestone makeovers such as the Quebec Act in 1774, the Constitutional Act in 1791, the Act of Union in 1840, and the British North America Act, 1867, which created Confederation. Then, over 150 years as the country evolved, amendments to the 1867 constitution have accommodated six more provinces, changed boundaries of provinces and territories, and revised jurisdictional powers. During the twentieth century, amendments came on average once every five years. In 1922 the Supreme Court of Canada introduced an apt metaphor, likening Confederation’s charter document to “a living tree” that grew and changed as the country advanced in new ways. This growing creation branched out into the equality of women and the enshrined constitutional status of aboriginal peoples. It extended to the new age of telecommunications as Ottawa’s 1867 jurisdiction over postal service and telegraphy reached to encompass interprovincial telephony, radio, television, then telecommunications and the digital era as they spread a new communications canopy over our country. The expanding Constitution covered an altered era of government involvement in health care and social assistance. Continuous constitutional growth, over time, became intrinsic to Confederation’s evolution.
Although this quest to live in harmony with our Constitution and change it when needed had been a worthy hallmark of democratic self-government, it then mutated into a preoccupation with constitution-making from the 1960s on. Rather than intermittently lopping off dead branches (for example, repealing spent provisions) and pruning so new growth could occur (for instance, switching responsibility for unemployment insurance to federal jurisdiction in 1940), the formerly pragmatic process escalated into attempts at extreme makeovers.
This phenomenon generated self-perpetuating rounds of conferences and gave birth to “executive federalism” as an alternate political forum for political insiders to game new constitutional designs for the country, an esoteric realm that Canada’s sovereign people could only observe as bill-paying spectators. By the 1990s, executive federalism had so overwhelmed the governance landscape that it consumed political capital, preoccupied talented officials, spawned innumerable seminars and colloquiums on campuses and in countless conference centres, sidetracked attention and intellectual effort, drained human energy, cost billions in public funds, and diverted attention from substantive issues impacting Canada’s economy and society. Televised first ministers’ conferences became the public face of executive federalism, but these set-piece shows, like leaders’ opening statements at international conferences, provided just a narrow and formalistic glimpse of this unaccountable and increasingly bureaucratic federal-provincial phenomenon. In tandem, a growing cluster of constitutional scholars, law professors, and media commentators rose to the status of “experts” in this prestigious white-collar industry.
This escapist drive to achieve “national unity” through constitutional negotiations sidelined other issues impacting the lives of all Canadians, thereby creating a new division in the country, or what today would be called “a disconnect,” between the people and those in public office. Addressing and resolving substantive Canadian problems would have generated a more dynamic and unified country, if achieved by normal and accountable political resolution. Yet nothing, it seemed, could curtail this dysfunctional methodology of executive federalism. The ever-expanding, all-inclusive tendency to redirect major issues into this process “constitutionalized” heavy-duty political subjects that other countries openly confront and work out in their democratically accountable legislatures.
When the Meech Lake Accord languished, demonstrating executive federalism’s inability to deliver results, the perverse outcome was not to abandon this dead-end detour from proven practice but to reinforce it. That last-ditch first ministers’ conference in Ottawa — as Clyde Wells dishonoured his pledge to put the motion to a vote of Newfoundland’s assembly, and while Manitoba MLA Elijah Harper defiantly withheld his consent, stalling all other members of the provincial assembly beyond the deadline for voting on their motion — produced a catalogue of additional issues the political leaders undertook to address next. Those commitments were ostensibly made on the condition that the holdout Newfoundland and Manitoba legislatures voted to amend the Constitution in accord with the Meech Lake deal, but when neither province did, that failure couldn’t stop the momentum of this compulsive process to redraft the Constitution.
Now the Meech Lake negotiations, which had been a final focused attempt to bring Quebec back into “the Canadian family,” was re-characterized as merely having been “the Quebec Round” of constitutional change. The concept of a new “Canada Round,” which Opposition Leader Chrétien advocated and Prime Minister Mulroney accepted, envisaged that every constitutional change proposed from any part of Canada would be examined for possible inclusion in a new constitutional package. For openers, those subjects identified at the last rites for Meech — attention to women, aboriginal Canadians, territories, and the fate of the problematic Senate — got swept into the hopper for this open-ended constitutional marathon. The insatiable process then accelerated to the point where every group and region, each minority and special interest, sought to see itself individually reflected in the Constitution. Failure hadn’t discouraged executive federalists, nor caused them to abandon this arid means of national advancement. The drive to constitutionalize our country’s political agenda had now shifted into overdrive.
It was hard at the time, given the political, media, and cultural embrace in Canada of executive federalism’s methodology, to recognize its inherent flaw: parading as “constitutional” matters that were primarily “political,” and doing so through a process devised, operated, and accountable principally to political leaders and public servants, without connection to the grounding realism of the sovereign people to whom the Constitution ultimately belonged.
Because of the now decades-long momentum for an extreme constitutional makeover, there were few stones left unturned. Following consultations with “grassroots Canadians,” the Spicer Royal Commission had presented many proposals on topics that could have been taken up in Parliament and provincial legislatures but which were now viewed as “constitutional” issues. The Mulroney government blended them with its own post–Meech Lake ideas for constitutional change, which it had been quietly developing through 1990 and 1991. In September 1991, Constitutional Affairs Minister Joe Clark presented Parliament with these proposals, some twenty-eight in all. This package was subjected to more public hearings all across Canada, conducted by a large parliamentary committee of MPs and senators, which then produced its own report, refining the government’s proposals and distilling public reaction to them. All this constitutional grist was then milled again by Clark and the provincial government representatives from March through July 1992. Meanwhile, a series of six regional conferences — a forum that was a hybrid of town-hall meeting and constituent assembly, in which experts, advocacy groups, and citizens discussed the main constitutional issues — took place, held on weekends and televised nationally. The regional conference in Alberta discussed, for example, the “Triple-E Senate,” while the meeting in Halifax contemplated “asymmetric” federalism as a means of accommodating Quebec’s requirements within Canada. Not scheduled but agreed to under indigenous protest was a bonus conference to assess aboriginal self-government.
By the end of it, every conceivable proposal for amending the Constitution had been studied to brain-numbing exhaustion. Yet during early summer 1992, news reports of meetings between Clark and the premiers explained elaborate new proposals for an elected and empowered Senate. With that, Canadians had proof positive that the executive federalists had overheated to a dangerous degree.
While our country’s ever-enlarging political class continued aloft, many Canadians, on the ground, couldn’t avoid more sombre discussions about the continuing economic uncertainty resulting from the recession, issues of trade treaties, business changes, and industrial restructuring. Canadians became impatient with their politicians’ preoccupation with constitutional topics in the face of grave economic dislocations and the country’s social problems, environmental concerns, and international relations in a dangerously changing post–Cold War world.
Prime Minister Mulroney was launching yet another round of constitutional negotiations, which would become the most far-reaching since the conferences that produced the 1867 Constitution and Confederation.
At an early stage, in July 1992, the intensive working of executive federalism saw Constitutional Affairs Minister Joe Clark and provincial leaders reach an agreement on a package of constitutional proposals that Clark, in the immediate moment, dubbed “historic.” During its brief life, this agreement became known as the Pearson Accord, having been negotiated at the External Affairs building named for Prime Minister Lester B. Pearson. Prime Minister Mulroney, attending meetings in Europe, was disconcerted to hear of the apparent finality pronounced about this constitutional package, since it was already being vilified in Quebec. Upon his return, Mulroney sized up the situation and concluded that yet another negotiating effort was needed to find a compromise that could be approved in Quebec. The prime minister reconvened all the parties during August, first in Ottawa, then in Charlottetown, for a further try. His approach in Charlottetown was to include in the accord only items on which there was unanimous consent, because the prime minister knew better than to hold a referendum for approval of a package containing elements any government objected to.
Accordingly, a number of provisions were deleted from the draft and placed instead in a separate “political accord.” The political accord was to become the agenda for further meetings to resolve outstanding issues, once amending the Constitution on the basis of the Charlottetown Accord itself had been concluded. It was the same formula applied by executive federalists for reaching the Meech Lake Accord: agree on some points now, agree to further conferences of first ministers later, and even make them a constitutional requirement, to ensure a never-ending cycle of attempts to deal with political issues in the Constitution’s formal structure.
That so many points were unanimously agreed upon in Charlottetown, the prime minister told me later, was due to the backdrop reality of the referendum. The premiers realized if agreement couldn’t be reached in Charlottetown, the national leaders would simply return to Ottawa and bring in a package of proposals that reflected, in their opinion, the needs and consensus in the country, and with the support of the two other major parties in Parliament, take the proposed amendments directly to the people in a referendum. That prospect, in Prime Minister Mulroney’s estimation, motivated the premiers at Charlottetown to actively seek a compromise all could endorse.
The Charlottetown Accord certainly epitomized political compromise. It was achieved mostly by the continuous addition of new features wanted by one premier to offset some concession to a stickler premier from another region. In some respects, it even seemed to square the circle, by reconciling three contending visions of Canada: the equality of provinces, the equality of citizens, and the equality of the two founding linguistic groups. The Constitution, as amended, would achieve the first by equal representation of every province in an elected Senate; the second by the Charter of Rights and Freedoms, which already accorded equality to individuals; the third by recognition of Quebec as a “distinct society within Canada” and promotion of English-language minority rights in Quebec and French-language minority rights elsewhere in the county.
A “Canada Clause” would spruce up the workmanlike nature of the 1867 Constitution, long on practical details but short on poetic expression. In an era of meaninglessly generalized corporate “mission statements,” it seemed necessary, to some, that we should add gloss to the Constitution with wording to “express fundamental Canadian values” and guide courts when interpreting the Constitution.
The existing Constitution provided for the political union of the county. Now provisions would state policy objectives underlying Canada’s “social and economic union” — further evidence of the impulse to overload the constitutional vehicle. These social and economic goals, though comforting, would only be hortatory — not obligatory as far as governments were concerned. The “goal of full employment,” for example, didn’t give an unemployed worker a constitutional right to sue the government for a job. Other noble objectives included working together to strengthen the Canadian economic union; free movement of persons, goods, services, and capital; ensuring all Canadians a reasonable standard of living; and fostering sustainable and equitable development. There were more, touching on economic disparities, equalization, and regional development. As well, five social policy aspirations to be expressed in the amended Constitution would provide throughout Canada a comprehensive, universal, portable, publicly administered, and accessible health care system (already existing as statutory standards in the Canada Health Act); adequate social services and benefits so all individuals in Canada had reasonable access to housing, food, and other basic necessities; high-quality primary and secondary education for all individuals with reasonable access ensured to post-secondary education; the rights of workers to organize and bargain collectively; and protecting, preserving, and sustaining “the integrity of the environment” for present and future generations. It was as if the campaign platforms of every party that had ever contested a Canadian election had been run through the blender to top up the Constitution — all honourable sentiments and laudable goals, none of them justiciable rights.
The Charlottetown Accord hardly stopped there, however. It recommended changes for the House of Commons and Senate. On the principle of the equality of citizens through representation by population and to offset the loss of Senate seats by Canada’s more populous provinces, the existing 295-member House would be enlarged to 337: the additional forty-two seats to be allocated would go eighteen each to Ontario and Quebec, four to British Columbia, and two to Alberta. Quebec would be guaranteed 25 percent of the seats in the House of Commons in recognition of Canada’s linguistic duality.
Attributes of the proposed new Senate were equal provincial representation with six seats per province and one per territory for a total of sixty-two senators. Senators would be elected. Additionally, the Senate would have aboriginal representation, with numbers and method of election to follow. Changes to the law-making powers of Parliament’s second chamber were to make it “effective,” since its ineffectual nature was a matter of public record. Ratification of appointments to Canadian boards and agencies, for example, would be subject to an absolute veto by senators.
The Charlottetown Accord proposed that the Supreme Court Act’s existing provisions about the court’s composition be put in the Constitution to entrench what had already existed for more than a century. Why not?
Quebec’s place within Confederation was addressed in thirty-one different ways in the Charlottetown Accord. One acknowledged, in the Canada Clause, that “Quebec constitutes within Canada a distinct society, which includes a French-speaking majority, a unique culture, and a civil law tradition.” The accord dealt with divisions of constitutional powers between Ottawa and the provincial governments such as had already occurred through normal democratic politics when the federal government agreed to pay reasonable compensation to a province that chose not to participate in a new Government of Canada program in an area of exclusive provincial jurisdiction, as long as that province carried on a program or initiative compatible with the national objectives.
Exclusive provincial jurisdiction was to be recognized in mining, forestry, tourism, housing, recreation, and municipal and urban affairs. Each province could require the Government of Canada to negotiate an agreement defining its roles in that province, and Ottawa would be required to provide reasonable compensation when asked to withdraw its operations from that province.
The accord envisaged a new partnership with Canada’s aboriginal peoples, based on “respect, rights, and responsibilities,” contemplating self-government arrangements within Confederation. These provisions were a major advance. Just months before, the Government of Canada had succumbed to pressure from aboriginal leaders criticizing its six regional conferences that glaringly excluded them, and reluctantly agreed to a conference on aboriginal issues relative to the Constitution. Even by the start of the August constitutional discussions under the prime minister’s chairmanship, which was a prelude to the Charlottetown meeting, aboriginal representatives were kept away. Chief Ovide Mercredi led representatives of the Assembly of First Nations to stand vigil outside the conference centre, protesting their exclusion. However, by this stage so much had been wound into the negotiated bundle that adding the complex dimension of aboriginal self-government wasn’t much of a stretch. Consequently, it was agreed to. One day Chief Mercredi stood apart from the process, a poignant symbol of aboriginal exclusion. The next he was indoors at the negotiating table being welcomed by the premiers, everyone soon standing before television cameras to explain progress with aboriginal issues among the proposals for constitutional change.
At this point only Canadians with disabilities considered themselves excluded as a constituency unidentified in the Charlottetown Accord. That was true, but as with aboriginal Canadians whose status had already been guaranteed in the Constitution, the entrenched Charter already guaranteed, in Section 15, full equality “before and under the law” and “the right to the equal protection and equal benefit of the law,” without discrimination on the basis of mental or physical disability.
It was only because of the juggernaut momentum of executive federalism, which had itself become an alternate structure to the democratic institutions created by the Constitution, that any identifiable group or interest excluded from this all-inclusive “Canada Round” took umbrage at going unmentioned. The existing Constitution already established the Government of Canada’s jurisdiction over aboriginal peoples and it was Ottawa’s prerogative to create a “new partnership” with indigenous Canadians any time it wanted to — acting through Parliament.
On its own, nothing would change the stultifying recalcitrance of senior ministers in the Mulroney cabinet and ranking Ottawa advisers about a national referendum on the Constitution, no matter how significant the changes. Only when the possibility of a new package of amendments emerged did the PM accept reality: Canadian citizens in three of the country’s biggest provinces would be voting on constitutional change, and unless there was a national referendum, all other citizens would be denied this right. Overriding many of his ministers and a large swath of the Progressive Conservative caucus, the PM ensured referendum legislation was enacted so that all Canadians — not just Quebecers, British Columbians, and Albertans — could play a citizen’s part in a democratic country on October 26, 1992.
In June 1992, Parliament enacted the Referendum Act. In September Parliament approved wording for the ballot question: Do you agree that the Constitution of Canada should be renewed on the basis of the Agreement reached on August 28, 1992? On September 18, the referendum campaign was officially launched, the vote to come thirty-eight days later. Our third Canada-wide balloting on a major public question would be the first on constitutional affairs. The vote in Quebec, conducted on the same ballot question on the same day, took place under the Referendum Act of Quebec. Everywhere else in Canada it was run according the Canada Referendum Act. The Quebec act stipulated the existence of two mandatory umbrella committees, a strict limit on referendum campaign spending, restrictions on campaign donations, a six-month residency requirement for voters, and voting results tabulated on the basis of provincial electoral boundaries. Outside Quebec, in contrast, people were free to form whatever committees they wished, in whatever number they wanted, to support or oppose the referendum, provided only that the committees register with Elections Canada if they spend more than $5,000. No limit restricted the size or source of financial contributions to any campaign committee. If a particular committee reached its spending limit, another committee could simply be registered to carry on the campaign, like amoebas subdividing by binary fission. New committees could be registered right up to voting day. Voters could be put on the list as long as they were resident when the enumerator called; there was no six-month waiting period, as in Quebec. The results were tabulated according to the boundaries of federal constituencies.
When the Canada Referendum Act was debated in Parliament in the spring of 1992, the merits of Quebec’s stricter regime were contrasted to the laissez-faire approach of the Mulroney government’s legislation. Those designing the bill peered nervously over their shoulders at the Charter of Rights and Freedoms, fearful it might be invoked by the National Citizens Coalition to challenge limitations on freedom of speech as unconstitutional. Quebec’s lawmakers weren’t spooked by such suppositions and had a fair, balanced referendum statute with umbrella committees and stronger standards they were prepared to defend in court if need be, and to re-enact using the “notwithstanding” clause if a court did strike down such provisions.
Following Parliament’s enactment of the Referendum Act, much detailed work had to be done. The act itself only established the basic framework for the referendum; officials at Elections Canada had to draft extensive regulations, adapting provisions from the Canada Elections Act wherever possible to fill the gaps. Even as the campaign was under way, more regulations would be promulgated: for instance, to prohibit broadcasting voting results in time zones where the polls hadn’t closed.
The Referendum Act directed that, in addition to English and French, aboriginal languages be used for voting materials wherever appropriate. Elections Canada produced referendum material in twenty-eight aboriginal languages and provided broadcasts in some thirty-one languages. Elections Canada and Quebec’s director general of elections provided a neutral framework within which the referendum campaign and voting could be conducted fairly, while the Yes and No forces provided its content. As with general elections, a referendum campaign’s substance takes whatever form the rivals choose.
The Charlottetown Accord itself, subject of the referendum ballot question, was executive federalism’s minor miracle: unanimous consent on a far-reaching package of major changes supported by the prime minister and Government of Canada, all ten provincial premiers and their governments, the two territorial leaders, and the four national aboriginal leaders. This compromise had been reached by four Progressive Conservative governments, four Liberal governments, four NDP governments, four aboriginal leaders, and one independent government. Opposition Leader Jean Chrétien and his Liberal Party of Canada supported the accord, as did NDP national leader Audrey McLaughlin and her party.
At the outset of the campaign, NDP leader McLaughlin, reflecting limited understanding of the referendum process, stated that her party would link the unity issue with the economy. In effect, she was trying to turn the referendum campaign into a mini-general election. The NDP would simultaneously promote national unity while attacking government economic policies. However, the Charlottetown Accord generated more than enough issues of its own to debate during the five-week campaign. The New Democrat plan to address economic concerns in this context was buried by events as soon as it was announced.
As the campaign began, it was broadly assumed the Yes side would carry the day and the only real test would come in Quebec, where an extra effort would be needed to ensure a majority (even a narrow one) would endorse the accord. This apparent advantage engendered complacency among those favouring the accord. The Yes campaign structure was unwieldy outside Quebec, lacking the organizational structure of two umbrella committees mandated by Quebec’s referendum law. With organizational aspects of the Yes campaign floundering, its message to voters lacked traction.
It is more accurate, in fact, to speak of many different Yes messages. Some supporters spoke of the accord as “not being perfect, not the way I would have written it.” These lukewarm proponents of Yes asked voters to accept it anyway. Others were alarmists. The Royal Bank of Canada unveiled on September 25 a study entitled “Unity or Disunity: An Economic Analysis of the Benefits and the Costs” and widely distributed copies of its report. The bank’s chairman, Allan R. Taylor, convened a press conference in Ottawa to dramatize the high economic costs of a No vote. It was reminiscent of the financial community’s scare tactics in 1980 during the Quebec referendum on separation. Eventually, the bank modified its analysis and softened its position, but others on the Yes side continued to stridently emphasize how a No vote would lead to Confederation’s breakup. Many Yes spokespeople were emphasizing the consequences of the vote rather than the contents and meaning of the Charlottetown Accord itself.
When explaining the substance of the accord to the Canadian public and addressing Canadians’ specific questions for which they wanted clear answers, the Yes campaign suffered an information short circuit. Those on the Yes side had blithely accepted the idea that because politicians were so poorly thought of, messengers, to be successful, ought to be non-politicians. Accordingly, at the national and constituency levels, great effort was made by the Yes organizers to patch together committees of eminent persons and notable celebrities whose single most important shared attribute, apart from being Canadian, was their distance from the political process and any identifiable partisan affiliation. Although people of outstanding accomplishments and diverse backgrounds, most were unfamiliar with the trade-offs that had gone into forming the Charlottetown Accord. They also were light on the substance of the document and tentative about its political implications. After the difficult hiatus created by this gambit, more elected representatives came forward to take up the battle in a cause that had not only lost steam but was now losing support.
From the outset, three complaints were voiced about the referendum process. First, some Canadians said they were too confused or didn’t know enough about the issue to vote on the question. However, no one casts a ballot on the first day of any campaign; they do so on the last. The five-week campaign enables people to hear the issues dissected so that individuals can reach informed conclusions. As the campaign progressed, there was certainly no shortage of material about the accord or summaries and interpretations of it. Even as voting day loomed in late October, however, many people remained undecided. This was understandable, because contradictory interpretations of the accord were authoritatively served up by respected people on both sides. The confusion said less about the intelligence of Canadians, more about the inherent nature of the Charlottetown Accord itself.
The second complaint emerged from the first. While the ballot question was straightforward — Yes or No to the August 28 Agreement?— the package of amendments itself embodied a wide variety of substantive changes to the Constitution. Why couldn’t these issues be set out one by one, many people asked, so voters could separately decide on such matters as aboriginal self-government, Quebec’s distinct status, an elected Senate, and the Canada Clause? But the people had to choose between Yes or No, just as would 295 MPs and several hundred provincial legislators. Each part of the accord had been negotiated in relation to the rest, and it was, like a union’s collective agreement, an integrated deal that had to be ratified or rejected as a whole. It would be impossible to implement Canada-wide multiple-choice results if each voter could choose bits and reject pieces of the vast composite. The comprehensiveness of the accord, the direct inevitable result of decades of “constitutionalizing” our country’s political agenda, was its greatest weakness. As long as this avenue continued to be pursued, it had to result — to be successful on its own terms — in an agreement that blended and compromised the constitutional demands of all major groups from Quebec nationalists to alienated Westerners, from second-status women to unrepresented Aboriginals. The Charlottetown Accord, as the product of this all-in approach, was as good as it gets.
Thus, on a profound level, what Canadians faced on October 26 was the basic issue of whether this “something for everybody” constitutional package could sustain Confederation. And in this realm, many Canadians resisted approving what was just too much change all at once. Their lament was that the reliable Canadian method of incremental change, in response to a single specific problem, had been jettisoned for an extreme makeover. This negative reaction, in many cases, also coalesced around a patriotic craving for a “Canadian” Constitution that spoke not of the parts within but of one Canada as a whole. People had had it with executive federalism and its unconstitutional forum in which premiers pretended to national leadership by stridently pursuing regional and parochial interests.
A third complaint was that a thirty-eight-day campaign was too short to properly come to grips with the many elements of the Charlottetown Accord. The timing, however, resulted from the long time it took the national negotiators to reach agreement, and Quebec’s legislated requirement for a vote by October 26 at the latest. This resentment about the rush was augmented, for some, by the fact that it was Quebec’s deadline that imposed a drum-tight timetable on the rest of the country.
Yet deadlines can also be inspirational, and force concentration. As with journalists writing to deadlines, students facing exams, or lawyers preparing for trial, the same learning dynamic kicked in as October 26 loomed. People studied the accord and its interpreting documents, tuned in to debates, participated in discussions. Had the vote not taken place until, say, March or April 1993, most people would likely not have begun to focus on it until a few weeks, or days, immediately before. Had Quebec not insisted on a fixed date to resolve the aching uncertainty about Confederation, we’d still be in constitutional discussions today.
Canadians for years had been subjected to excessive discussion about the Constitution, an endless all-pervasive topic. By autumn 1992, no other electorate in the world was as prepared to deal with an issue as Canadians were about our Constitution. Yet the Charlottetown Accord addressed so many major political subjects. Even Canadians, who’d by osmosis soaked up deep constitutional awareness, had to come to grips with some new issues. Once the campaign began in earnest, it was clear that regardless of the numbers for Yes and No tallied on the night of October 26, the country was gaining from this national “teach in” on all issues raised by the Charlottetown Accord — which was essentially everything about Canada.
Journalists and news organizations relished their indispensable role in the campaign. Among the ambitious broadcasting efforts were CBC Television’s three Sunday-night productions devoted to referendum issues in the form of electronic, Canada-wide, town-hall meetings, with notable Canadians and diverse citizens discussing and debating the contents and implications of the accord. While such exercises shed light on the ballot question, other broadcasts generated heat, such as radio hotline shows in British Columbia that offered a megaphone for the accord’s vociferous opponents. The country’s newspapers and news magazines carried page after page of analysis and covered public battles and behind-the-scenes campaign manoeuvres. The French-language newsmagazine L’actualité printed transcribed telephone conversations between two of Premier Robert Bourassa’s top advisers alleging with disparaging comments that he’d failed to bargain successfully for Quebec’s interests. It was a news organization’s effort not to attack the accord on its own terms but undermine the credibility and authority of the premier who had negotiated it.
Opinion polling again raised questions of cause and effect. Since the direct vote by all Canadians constituted a comprehensive “opinion poll,” the pollsters’ interim reports on how the electorate was thinking, based on “representative samples” of voters they contacted, interfered with the deliberative process by influencing its outcome. Polling reports that voters in Quebec were likely to reject the accord influenced many voters in other parts of the country. Those who were concerned about Quebecers voting one way and the rest of the country the other concluded they could safely vote No and not run the risk of “breaking up Canada.” This pattern of safe second-guessing by voters, sometimes called “strategic voting,” is only possible on the basis of opinion poll results released at intervals during a campaign. As part of the voters’ decision-making process, polls become integral to an individual’s evolving position as voting day approached.
A referendum campaign can’t be a watertight compartment for five weeks in a country like Canada, and developments with no direct bearing on the accord itself, such as apprehension over signing the North American Free Trade Agreement (NAFTA), made some imprint on the campaign.
The theory that referendums can separate personality from policy was most severely tested, however, by two prominent public figures, incumbent Prime Minister Brian Mulroney and former Prime Minister Pierre Trudeau. Both placed themselves front and centre in the proceedings. Once the referendum was called on September 18, Mulroney began making major appearances across Canada to urge a Yes vote. Rather than adopting the role of father to the nation, calmly instructing the electorate about the Charlottetown Accord and its many provisions, as he might have done in televised “fireside chats” from the national capital, even sharing such appearances with leaders of other parties who likewise supported the accord, Mulroney was in his element, as if in the thick of an election-style campaign.
Trudeau, meanwhile, had telegraphed his intent to become a prime antagonist in the referendum drama, announcing days in advance a statement he’d make by October 1. Twelve years earlier Trudeau had pledged to Quebecers that he’d work for renewal of Confederation; now he urged Canadians to reject amendments intended to do just that. In saying Canadians shouldn’t be “intimidated” and just vote No, Trudeau lent the prestige of his persona to the same No side being championed by separatist diehards Jacques Parizeau and Lucien Bouchard, with their Parti Québécois and Bloc Québécois adherents, and by Alberta’s generally anti-Quebec Preston Manning and the anti-French elements in his Reform Party of Canada. In places where Trudeau had once been vehemently denounced, he was now being lionized by those wanting to express their antipathy to Quebec.
It is hard to calibrate the impact of major political figures on that referendum campaign. Trudeau’s appearance fortified both the separatists in Quebec, who wanted a No, and voters elsewhere in the country whose No vote was a putdown of Quebec. Even harder to evaluate was the impact Brian Mulroney had upon voters. His standing in popular opinion across Canada had certainly seen better days. A number of voters tried to discern whether approval or defeat of the Charlottetown Accord might hasten his departure from office. Others resolved to not vote Yes if approval of the accord would be interpreted as a victory for Mulroney. Talking with voters throughout the campaign, I found that such feelings, though strongly held, blended with many other factors, and in most instances, really couldn’t be quantified.
All the same, Maclean’s published a Decima poll after October 26 that sought to quantify people’s main reasons for voting No: 8 percent said it was because they opposed Brian Mulroney, 15 because the provinces shouldn’t be given more power, 22 because the accord was a poor one, and 27 percent because Quebec got too much. During the campaign, many Yes supporters felt the PM’s strenuous efforts were counterproductive to the result he sought, on account of strong negative feelings about him. This reinforced the risk of campaigning in a referendum if one doesn’t separate personality from the proposal as much as possible. Still, politics is rich with paradoxes. Should Mulroney, as prime minister of Canada, be faulted for trying so strongly to promote the Yes side? Twelve years earlier many criticized Prime Minister Joe Clark for deciding to sit out the 1980 referendum battle over sovereignty-association in Quebec. It’s never easy being a politician.
By about October 3, the bottom seemed to have fallen out of the Yes campaign. The growing impact of Pierre Trudeau’s methodical denunciation on October 1 of the Charlottetown Accord gave high respectability to supporting No. The financial markets by early October had accounted for the accord’s probable defeat, with the Canadian dollar dipping on international money markets and domestic interest rates rising 2 percent, all of which provided its own chill. And Prime Minister Mulroney campaigning in Quebec, alarmed by the public’s preoccupation with that taped cellphone conversation between Diane Wilhelmy and André Tremblay demeaning Premier Robert Bourassa’s bargaining efforts for Quebec, resolved to jolt the Yes campaign back into focus. When he appeared in Sherbrooke for an evening rally to speak about the thirty-one gains Quebec had achieved under the accord, Mulroney held up pages listing the items. Then he ripped them in half. His dramatic gesture, intended to show Quebecers how they’d jeopardize what had been negotiated for them if they voted No, yielded a photograph that appeared the next day on front pages of newspapers across Canada. Many voters thought the prime minister was ripping up the Charlottetown Accord and considered his theatrics excessive and inappropriate. In the eyes of many by this stage, there was very little that Brian Mulroney could do right. He’d get no benefit of any doubt.
As October progressed, the number of community meetings and local debates about the accord proliferated. The full text of the Charlottetown Accord was delivered to every household. A toll-free long-distance number was constantly in use by hundreds of thousands of citizens seeking more information. Day by day, Canadians struggled to make their own personal decisions, many moving back and forth between Yes and No trying to reach a final verdict. Pollsters continued to take the pulse of the body politic and reported that the accord seemed in jeopardy.
The dynamic of the campaign was that the Yes side spoke generally in favour of broad propositions and compromise, while those urging a No vote focused on just one or two specific shortcomings in the accord and made a compelling emotional case on that basis alone. The cumulative effect of so many specific negative attacks administered the accord the death of a thousand small wounds.
As polls closed at eight o’clock on the night of October 26, the first indication the accord was in serious trouble emerged with its defeat in Nova Scotia by a vote of 51.1 percent to 48.5 percent. In Atlantic Canada’s other provinces, the Yes side emerged victorious: Newfoundland with 62.9 percent; Prince Edward Island, 73.6 percent; and New Brunswick, 61.3 percent. In Quebec, the crucible of constitutional change, voters rejected the accord 55.4 percent to 42.4 percent. In Ontario, where collectively voters hedged their bets by dividing equally into two camps, the photo-finish result gave Yes the slimmest of margins: 49.8 percent to 49.6 percent. By this point, the results already showed the accord’s future was all behind it. As more returns came in from western Canada, that message became unequivocal.
Manitoba rejected the accord 61.7 to 37.9 percent. So did Saskatchewan, 55.1 percent to 45.5 percent. Alberta electors voiced their No with 60.2 percent of votes to 39.6 percent for Yes. British Columbia, which throughout the campaign had remained a world unto itself, recorded the highest No vote anywhere in the country with 67.8 percent opposing and only 31.9 percent in favour.
When the No side triumphed, many journalists and commentators opined that the people had turned against the elites, a line of “analysis” that is the cliché of referendum post-mortems. Yet millionaire Pierre Trudeau in 1992 was a member of Canada’s elite. Likewise, Preston Manning, son of a provincial premier, a millionaire, and a national party leader, greatly resembled the political elites he consistently attacks. The Liberal Party of Manitoba under leader Sharon Carstairs and the Liberal Party of British Columbia under leader Gordon Wilson both opposed the accord. So did the National Action Committee on the Status of Women, led by Judy Rebick, and the National Citizens Coalition, led by David Sommerville. A range of notables from the financial, business, and academic communities supported No, as well. The Yes side had a preponderant share of prominent Canadians and also had the combined political strength — such as it proved to be! — of the national Progressive Conservative, Liberal, and New Democratic backroom campaign organizers. On balance, the “elites” were on both sides of the referendum question.
Overall, the national vote saw 44.8 percent of voters endorse amending the Constitution on the basis of the Charlottetown Accord, with 54.2 percent opposed. Critics of referendums relish saying they “divide” the country, but these results didn’t split along linguistic or regional lines. A general and far-reaching vote instructed the governments of Canada not to proceed with constitutional amendments that had seemed only two months earlier guaranteed of success.
The governments had proposed; the people had disposed. As Canadians decided not to follow one road to re-constituting Confederation, we implicitly sought another. The referendum of October 1992 transformed Canadian public affairs by redirecting political forces along a needed new trajectory. A referendum, it turned out, was the only thing with enough conclusive force to end the quixotic thirty-year quest by Canada’s political class to deal with our country’s public issues indirectly in the Constitution rather than straight up through our legislatures.