January 31st Class –Leading Discussion
- Mandel Pages 96-106
- Knopff and Morton, Kit: pages 123-131
The Meech Lake Accord pg 97
There are 6 major components to the Meech Lake Accord:
- The "distinct society" clause and related amendments to the Charter
- Immigration agreements between the federal government and the provinces
- Opting out of the shared-cost programs with compensation
- Amendments to the Constitution
- Agenda items for future constitutional conferences
- Appointments to the Supreme Court of Canada and the Senate.
A Few Events that Mandel Mentions which led up to the Meech Lake Accord.
- The ratification of the Accord was put into jeopardy when two provincial elections thew signatories out of office.
- The Yukon and North West territories went to court arguing that their territories were excluded from certain provisions of the Accord and prejudiced by others and that they had the right by constitutional convention to be heard when amendments were considered and by constitutional law to be fairly included in the deal. The Territories lost their case and the appeal court cited the following "that any conventions had been abrogated by the new amending power, and the Charter could definitely not apply to its own amendment. "
- Ontario Lawyers Eddie Greenspan, Morris Manning, and Timothy Danson announced in May 1988 that they were going to launch a global attack on the Accord.
- Trudeau and others asked for a reference to the SCC just to say what the Accord meant.
- Mandel suggests that the signatories to the Accord preferred the ambiguous nature to the Accord , that this was it’s appeal.
- Opposition to the accord slightly outweighed those who were in favour of it, but the largest group were those who were unsure about the Accord all together. April, 1988 Poll. Quebec had opposite reaction.
Dissecting Each The Six Segments of the Accord
- Pg 476, S.1 of the Accord states the distinct society clause: "Quebec constitutes within Canada a distinct society."
- People were unsure of what this meant. Did it mean giving additional powers to Quebec or subtracting powers from the Federal Government? Or was it purely symbolic without legal ramifications?
- Mandel cites Peter Hoggs interpretation of the clause which was that the clause should be regarded as "an affirmation of sociological facts with little legal significance" and that it was mainly symbolic. However, he also said that since a law with the purposes "recognized" or "affirmed" by the amendment would "give those purposes added weight" as ‘reasonable limits,’ the clause could indirectly expand powers via the reasonable limits clause. But then again, according to Mandel it might not.
- AT the end of the day, it would essentially come down to the courts and what the courts made of the words. Therefore, the courts could read in or read nothing out of the distinct society clause.
- Meech Lake also provided a clause that created a mechanism for putting in place agreements between the federal government and any province to give that province control over immigration.
- Such types of agreements had already existed (e.g. between the federal government and Quebec) however this in effect would give constitutional status to these agreements.
- These types of agreements would operate as an exception to the federal government’s exclusive jurisdiction over immigration and could not have been revoked except by agreement of both governments.
- All agreements had to uphold national standards and objectives relating to immigration or aliens, other wise it would be of no effect.
- According to Mandel, what this clause essentially did was to give modest supervision of such agreements to the courts. It allowed the federal governments exercise of power of this area to by judicially reviewed.
- However, Mandel points out that the Courts probably had the ability to review such agreements via the Charter anyway, so it was difficult to tell what this provision actually accomplished.
The Spending Power
- This clause provided that the federal government would have to compensate a province that chose to opt out of any future national shared-cost program – "if the province carries on a program or initiative that is compatible with national objectives."
- Most often given example was the National Day-Care Program
- This clause was attacked for potentially weakening the federal government’s ability to carry out social programs. But it was also suggested that it would strengthen the provincial capacity to innovate.
- The significance of this provision was that previously the courts had modest judicial supervision over this spending power, but having it in the Accord gave them an increase power over this particular subject matter.
Amendments to the Constitution, p100
- This provision made it more difficult to amendment some aspects of the Constitution.
- Previously a "7/50" formula was used (7 of the provinces, 50% of the population. But this provision required complete unanimity for amendments to the following subject matter: fundamental changes to the Senate, the House of Commons, French and English, the Supreme Court of Canada, the creation of new provinces and the extension of old ones.
- The unanimity requirement was not to be applied to amendments concerning the division of powers.
- The Federal Government and the Premiers of the Canadian provinces were required to have two annual conferences: once concerning constitutional issues and the second concerning the economy.
- Mandel points out that one would think a simply promise to have such meetings would be enough, but that as First Nation’s peoples have experienced, they are no guarantee’s of any agreements.
The Supreme Court of Canada
- The Supreme Court of Canada was to be entrenched in the Constitution.
- According to Mandel the real point of this provision was to put the Court beyond the reach of the federal government.
- Within this provision, Quebec specifically benefited by having Constitutional entrenched the right to 3 judges on the SCC. In conjunction, when a SCC judge retired from their position, the province in which it was their turn to have a judge sit on the court from their region would submit a least of judges from their province which qualified to sit on the Court (e.g. a person who has been a judge of member of the province’s bar for over 10 years). Ultimately, the federal government would chose who would sit on the SCC bench, but they would be limited to the names put forth by the province.
- Many people within the judiciary were critical of this provision like Judge Estey and Thomas Berger (e.g. Quebec may play politics by not submitting any names at all and grinding the Court to a halt).
Meech Lake and the Legalization of Politics
- Mandel argues that if Meech Lake had been ratified it would have meant the expansion of the domain of legalized politics. Why?:
- 1)It would have brought Quebec back into Confederation in a legitimate sense. The constitution had applied legally to Quebec since 1982. But with Quebec excepting Meech Lake, it would have meant that Quebec symbolically endorsed the Constitution. Quebec would endorse Meech Lake because of the "distinct society clause" and because of the secured appointment of 3 SCC judges from Quebec
- 2) Once Quebec accepted Meech Lake, it would make it easier for the Feds to pout money into Quebec, and for Quebec to accept that money.
- Meech Lake was defeated in June 1990 when the time limit for its ratification expired.
- Newfoundland had rescinded its earlier ratification and Manitoba had yet to ratify the Accord.
- In Manitoba’s case the ultimate blow came from an aboriginal MPP, Elijah Harper, who denied the government the unanimous consent necessary for an abridgment of the procedural rules. Harper became an advocate for a wide number of constituencies who were opposed to the Accord (e.g. aboriginal persons, women, Westerners, Easterners, Persons with Disabilities).
- Many people felt that the Accord was drafted with only consulting the leaders of the governments and not other important bodies and that it only had the interests of Quebec in mind.
The June 9 Deal, pg 104
- Two weeks before the deadline for the ratification of the Accord, marathon bargaining sessions were put into place which promised to address the grievances of various parties at a later date if the Accord was ratified. For example, the premiers promised to a seek a constitutional amendment by 1995 for a "Triple E" Senate.
- For Women it was promised that s.28 would be tucked under the protective arm of s.16 of the Accord, just the way multiculturalism and aboriginal rights had been.
- For the territories there would be a role in appointments to the SCC and they would be consulted on future constitutional reform, as would aboriginal peoples.
- There would be mandatory public hearing s prior to adopting constitutional amendments.
- There would be "a statement of constitutional recognition’s" to address those persons who felt that only Quebec was being recognized in the agreement.
- It should also be noted a letter that was written by "Constitutional Authorities" who were hand picked by Roger Tasse to give their legal opinion on the Accord. According to Mandel, all of these "Constitutional Authorities" were pro-Accord (and hence why they were picked for the job) and used their opinions to transform the "distinct society clause" into a "duality-distinct society clause" via their letter.
What’s Wrong with Charter Revolution and the Court Party?
Thesis: Morton and Knopff object to the Charter Revolution on the grounds that they feel it is deeply and fundamentally undemocratic in two senses –1) that it is anti-majoritarian and 2) it erodes the habits and temperament of representative democracy.
More specifically, they argue that court room rights undermines one of the pillars of liberal democratic politics; namely ‘the willingness to engage those with whom one disagrees in the ongoing attempt to combine diverse interests into temporarily viable governing majorities." Hence, they argue that issues concerning rights should be dealt within the structure of elected institutions such as the legislature, and not in the courts. Once this debate occurs in an elected representative setting, various minorities will form coalitions to form temporary majorities, who will decide the outcome. However, when the final outcome of rights occurs in the Court room, it takes on an authoritarian spirit which is anti-majoritarian.
Turns to two quotations from Peter Russell’s work in order to explain their concern.
- Russell infers from our Constitutional history the following: That not all Canadians have consented to form a single people in which a majority or some special majority have the right to set and conclude rest. In other words, some Canadians haven’t accepted majority rule. Because not all Canadian have accepted majority rule, which is at the heart of democracy according to the authors, it divides us as a society to the point where we are not a sovereign people.
- Focuses on a concern of transferring policymaking from the legislative to the judicial arena. More specifically, we need debate in order to settle political differences, this type of debate can only occur with the legislature and not within the Courts (because the Courts do not engage in these types of debates). The Charter represents attempt to move this type of discussion and settling of political differences out of the Legislature and into a void.
- Argues that the Charter was intended to reunify our country but instead has created more tension because it moved political discussion out of the legislature and into the Courts where it doesn’t belong nor truly occurs.
- Cites early constitutionalists in Britain and the USA understood this and believed that representative democracy, not judicialized politics is mainly how a sovereign people should protect rights.
- The Americans thought the best way to protect themselves from oppressive majorities was not through a Bill of Rights but rather through the new "science of politics" in which a system of institutional checks and balances would replace majority rule with minorities rule –namely with majority coalition of diverse minorities. Government by discussion would also safeguard against oppressive majorities.
- Argues that Alexander Hamilton agreed with the previous statements and still saw a role for the Courts, but a very limited role. He felt that the courts would only declare laws unconstitutional in absolutely clear contravention of the constitution.
- Lord Durham had a similar view of responsible government as the Americans. Parliamentary sovereignty was the key to protecting rights.
- A.V. Dicey: although he had great respect for the rule of law and the courts, he too believed in the role of parliamentary sovereignty.
- Summary: American and English systems sought to protect rights more through representative democracy and checks and balances than through bills of rights.
- Reviews the history of the US Bill of Rights and whether they have actually protected rights. Only 15 Federal Laws of been voided because they entrenched on rights. Believes that the Bill of Rights hasn’t done much to protect people’s rights and that our obsession with thinking that the Bill of Rights does protect rights probably comes from "Brown v. Board of Education 1954".
- Russell comment: You need a psychiatrist if you think that the courts will protect your rights more than the legislature.
- Author suggests that Courts are too weak to oppose the tyranny of the majority or the tyranny of a single despot and thus do not protect rights in any fundamental sense but rather encourages rights claiming, which leads to them being able to make public policy.
- Fundamental Rights vs. Rights Claiming: Gives example of garden and being allowed grow weeds as a freedom of expression.
-leads to moral over sensitivity which lowers the threshold in which citizens feel justified in abandoning the democratic process.
- Distinguishes between the types of debates that occur in a Court and in the Legislature. Recognizes that some legitimate debating occurs in Court but the difference is that the debate in a legislature shows the willingness to abide by the rule of majorities with which on disagrees. Also looks at the "civility" that occurs in the legislature as being indicative of this acceptance. [Which I personally disagree with]
- Judicialized politics has a much more closed and intolerant character. It encourages extremists to claim constitutional trumps instead of engaging in government by discussion.
- Uses abortion case to exemplify how a discussion didn’t really occur and the media did not properly represent the reasoning for the verdict instead turning it into a black and white verdict that painted the pro-choice group as having more rights on their side than pro-life when that was in fact a fallacy.
- Quebec Sign Laws: when people didn’t want to respect the will of the majority and didn’t want to work through the problem in a more democratic fashion by legislative debate, they turned to the Courts. This wasn’t healthy for society. SCC intensified the tensions between Quebec and Canada. They found in unconstitutional, thus "forcing" Quebec to use the notwithstanding clause and increasing tensions between ROC and Quebec during Meech Lake.
- With Vriend and Morgentaler: after the Courts made their decision, the governments didn’t try to redraft legislation or use an override clause because it was politically too risky (especially using the override clause). Better to the Court bare the burden for the public’s wrath.
The result is to embitter politics and decrease the inclination of political opponents to treat each other as fellow citizens –that is, as members of a sovereign people.
- Did you agree with Meech Lake? If so why and if not, why not?
- What is your view did "Distinct Society" represent? Was it purely symbolic and something that was to remain that way. OR was their potential for it to take on new meaning?
- Were the concerns of lobbyists against the Accord (e.g. women groups, First Nations, the physically disabled) legitimate?
- Do you think that if Meech Lake had passed that that it would have "reunified the country and quelled the Separtist movement?
- Do you feel that Charters/Bill of Rights have the ability to protect rights more or less than the legislature.
- Do you agree with the description and the effects of that description that Morton and Knopff give to "governments made by discussion"?