January 31:

 

The premier of Québec, Rene Léveque, had already agreed to nearly everything included in the November 5 agreement, but he could not accept one of the compromises of November 5 in particular: that a province that opted out of a constitutional amendment made under the "seven-fifty" formula would be compensated only if the amendment affected education or culture. Although this point may seem relatively minor, no Québec government elected on a separatist platform could ever have agreed to a constitutional package that gave greater legitimacy to the Canadian regime. Léveque maintained that on November 5, when the compromise agreement was reached, Québec delegates were not present, and so Québec had been betrayed. The opposition Conservative party took up the same refrain, and used the issue to help win the majority of seats both in Québec and in Canada in the 1984 general election (Trudeau had retired as Prime Minister in 1983). The Conservatives promised another constitutional amendment that Québec could agree to, so that Québec could accept the 1982 constitutional accord. When the Parti Québecois government was defeated in the 1985 Québec election by the federalist Liberals, the time seemed right to proceed with the amendment promised by the federal Conservatives.

 

2. The Meech Lake failure: The Québec Liberals spelled out five conditions for peace over the constitutional amendment issue, most importantly a full Québec veto for constitutional changes, and the recognition of Québec as a "distinct society." The other three conditions were: a provincial role in making appointments to the Supreme Court of Canada, a shift to the provinces in power over immigration, and limits on the federal spending power. These conditions could actually be met without too much difficulty. Part V of the C.A., 1982 left each province with a de facto veto except with regard to financial compensation for amendments under the seven-fifty formula that affected matters other than education and culture; Part V could be amended to expand financial compensation for opting out by amending it with the unanimity formula. A "distinct society" clause could be added to the constitution with the seven-fifty formula.

 

In fact, all the premiers and Prime Minister Mulroney agreed to a package for constitutional change that satisfied Québecís five conditions (plus Senate reform) in 1987. The "Meech Lake Accord," as it became known, would have amended the constitution to implement the package primarily with the seven-fifty formula, but the changes to Part V itself would have required unanimous consent. Although the unanimous consent formula has no time limit, Québec insisted on a three-year deadline. During the three years, provincial elections resulted in new governments in Manitoba, Newfoundland and New Brunswick, and all the new governments opposed the Meech Lake Accord. Their opposition reflected public sentiment in Anglophone Canada, which was critical of an important constitutional change made with very little public input. A constitutional conference was held in 1990 that resulted in modifications to the Meech Lake Accord that brought New Brunswick on board, but the premiers of Newfoundland and Manitoba could not guarantee that their legislatures would implement the Accord. In fact, these two legislatures were still debating the Meech Lake Accord as the three-year deadline passed, and so the Accord died. It should be remembered that without the three-year time limit imposed by Québec, the Meech Lake Accord might possibly have succeeded.

 

Mandel notes that those opposed to the Accord (eg. the governments of the two territories) tried to use litigation to derail it. Part of the argument was that constitutiuonal amendments were subject to the Charter.

 

Distinct society clause: The DS Clause would have added an interpretive phrase to the beginning of the CA, 1867 which stated some "sociological facts" (Hogg) about Canada and recognized Quebec as a "distinct society" within Canada. There was a huge argument about what this clause meant, and how it would play out in the courts. It was really a directive to the courts about how to interpret the constitution when matters of interpretation affected francophone or anglophone linguistic majorities or minorities across the country. It was during the Meech Lake debate that the SCC came down with the Ford decision, in which they stated that the Quebec governmentís desire to preserve its language and culture constituted a substantially important objective that might justify limiting rights and freedoms in the Charter. So the I think this indicates that the SCC didnít need the DS clause in order to recognize Quebec as a DS. However, Bourassa claimed that had the DS clause been in effect, the SCC would not have struck down the signs legislation, and this statement helped to fuel opposition to the Accord in Anglophone Canada.

 

Trudeau claimed that the DS clause meant the end of the Canadian dream. Was he claiming to know how future courts would interpret the clause? No -- I think he meant that by accepting the DS clause, this would give legitimacy to the Quebec nationalists who claimed that the Accord of 1982 indeed had been an attempt to subvert Quebec. The DS clause would not have the results claimed by the Nationalists, and so in the end they could claim that nothing could save confederation.

 

Womens groups in anglophone Canada claimed the DS clause would erode womenís rights in Quebec, but Quebec womensí groups denied this.

 

Mandel is right -- this debate was full of sound and fury, signifying nothing, because it would be up to the judges to interpret the DS clause, and that canít be accurately predicted. (However, if you look at how judges have used the interpretive clauses in the Charter, theyíve had no substantive impact, but have been used to justify decisions made primarily on other grounds.)

 

Immigration: S. 95 of the CA, 1867 already makes immigration a concurrent subject matter, and Ottawa already had immigration agreements in effect with several provinces, including Quebec. The Accord would have given these agreements "constitutional" status in that they could not be changed without the agreement of the fed. govít and the provinces concerned.

 

Limits to the federal spending power: Said that the fed govít would have to compensate a province that opted out of a future shared-cost program (like tax points are created for Quebec re the CPP so Que can have its own pension plan). Politically, the feds would have to compensate an opting-out province anyway, so as Mandel States, this clause just constitutionalizes what is already happening, and makes it subject to a modest amount of judicial supervision. Supporters of a strong fed govít claimed that the clause would strengthen the fed. govít by giving it a legitimate role in shared-cost programs, and giving it the ability to set national standards.

 

Amendments to the constitution: matters that can only be amended by the 7/50 formula, and for which there is no opting out, would become matters that could only be amended through unanimous consent -- thus giving Quebec a veto. These included major changes to the Senate and H of C, the French and English languages, the SCC, creation of new provinces, and extension of old ones. As well, compensation for opting out under the 7/50 formula was extended to include all matters, not just education and culture.

 

SCC: provinces were given a role in selecting new judges. Provinces would provide a list, and feds would choose. Feds could continue asking for names.

 

Senate reform: the western provís stressed that const. reform shouldnít just be about Quebec, so they got partial success -- Senators would be chosen from names submitted by provinces, but feds could keep asking for more.

 

Many people felt left out of the accord -- west. provís, aboriginals, women, etc. A couple of weeks prior to the deadline for ratification, premiers had a meeting to try to save it. Seemed to work -- except Eiljah Harper, and MLA in Man, would not give unanimous consent for the debate to proceed. Therefore, in Newfoundland, where the premier was a Trudeau supporter and opposed to the accord, a vote was never held.

 

Moron & Knopff: There was a big overlap between the groups opposed to the Meech Lake Accord, and the "court party," as they call it. Their major objection to the role of the "court party" is that the "court party" groups assumed a preeminent place both in constitutional politics and in Charter politics, and because the "court party" groups are not representative of the general public, they play an anti-democratic role.