bout de papier, Vol. 5, No. 2 (1987) — Summer 1987 // Été 1987, pp. 8–9
By the time this appears in print, the Meech Lake Accord will probably have become a body of actual amendments to the Constitution. These may make obsolete many statements that otherwise could have been made about the existing Constitution and about what seems likely to come out of the Accord (which contains a good many ambiguities and obscurities).
However, there are two things I think can be said about both with a fair degree of confidence.
First, the Constitution Act, 1982, gave us a very rigid Constitution, very hard to amend; and the Accord would make it more rigid still.
Certain things can be changed only with the consent of the House of Commons and the unanimous consent of the provincial Legislatures: the monarchy (the office of the Queen, the Governor General and the Lieutenant-Governors); the right of every province to have at least as many seats in the House of Commons as it had in the Senate before April 17, 1982; the use of the French and English languages in Parliament and the federal courts, and (probably) the Legislature and courts of Quebec; the number of judges, and of Quebec judges, on the Supreme Court of Canada; and any of the five amending formulas. (The Senate can only hold up an amendment for 180 days. It has no veto.)
Most other amendments require the consent of the House of Commons and of seven provincial Legislatures representing at least half the population of the ten provinces. This means they must have the consent of either Quebec or Ontario.
If the necessary consents are not given within three years, the proposed amendment dies. This means that for any amendment that requires unanimous consent of the provinces a single Legislature just keeping mum for three years can kill it; and that for any amendment that comes under the seven province formula, the silence of four provinces is fatal.
Under the Constitution as it stands, the seven-province formula explicitly applies to changes in: the principle of proportionate representation of the provinces in the House of Commons; the powers of the Senate; the method of selecting Senators; the number of Senators from any province; the residence qualifications of Senators; the extension of existing provinces into the territories; and the creation of new provinces.
It explicity applies also to any “amendment to the Constitution of Canada relating to the Supreme Court of Canada” (except for those which require unanimous consent). The only provision of the pre-1982 Constitution relating to the Supreme Court of Canada was section 101 of the British North America Act (now re-named the Constitution Act), 1867, which gave Parliament the power to create the Court, and hence to make any changes in it that it chose, even to abolish it. Presumably, the Constitution Act, 1982, takes away Parliament’s power to abolish the Court, or to change the number of judges, or the number of Quebec judges. Certainly, that was the intention. But just what changes now come under the seven-province formula, and what changes can Parliament itself still make without any reference to the provinces?
Under the Meech Lake Accord, all these eight matters would be transferred from the seven-province formula to unanimous consent. (The transfer would itself have to have unanimous consent.)
In view of the current vogue of Senate reform (proposals for this are “thick as autumnal leaves in Vallombrosa”), it is important to realize just what even the seven-province formula imposes on reform schemes that would involve constitutional amendments.
Any four provinces could stop any change in the powers of the Senate; any change from appointment to election; any change in the number of Senators from any province.
For example, the “Triple E” Senate would give every province six Senators. The four Western provinces, and Newfoundland already have six, so their consent can be taken for granted. Prince Edward Island would go up from four to six. It would be enraptured. But Nova Scotia and New Brunswick would go down from ten each to six. Quebec and Ontario would go down from twenty-lour each to six. Those four provinces would instantly reject the amendment, which would kill it as dead as mutton. Under the Meech Lake Accord, any one province could kill it.
Any proposal to give the Senate new powers would require the consent of the House of Commons. But the House will “brook, like the Turk, no brother near the throne”, and if it wanted to, no Government would let it. It will not consent to give the Senate more real power than it now has. (It already has ample legal power, notably an absolute veto on all legislation. But, being appointed, it has no political clout.) And the reformers all insist that it must have more real power. That is one reason why they nearly all want an elected Senate. It may be added that the provincial Premiers, prima donnas all, are not going to surrender any of their power to deal directly with the federal Government to any understudies, elected or otherwise, least of all when the Meech Lake Accord would put the annual First Ministers’ Conferences into the written Constitution, with an entrenched agenda that includes Senate reform. The only exception I can think of is the federal Government’s undertaking, in the Meech Lake Accord, to appoint all the Senators from lists drawn up by the respective provinces. The provincial Premiers will no doubt welcome this delicious addition to their patronage, especially as it is “fail-safe”: they can always tell disappointed aspirants, “Your name was on my list; but the blankety-blank federal Government wouldn’t appoint you”.
Abolition of the Senate would of course require unanimous consent of the provincial Legislatures, because the Senate is part (though a minor and impotent part) of all the amending formulas.
The second thing that can safely be said about our present Constitution is that it enormously increases the power of the courts. The Charter made a revolutionary change there. And if the Charter is slaying its thousands, the Meech Lake Accord could slay its tens of thousands. For it introduces two radically new principles of interpretation of the Constitution, which the courts would have to apply to all federal and provincial legislation.
The first is the “duality principle”. The Accord imposes on Parliament and the provincial Legislatures a “commitment” to “preserving” a “fundamental characteristic of Canada”: the existence of French-speaking Canada, centred in but not limited to Quebec, and English-speaking Canada, concentrated outside Quebec but also present in Quebec. It also imposes on the courts an obligation to interpret the Constitution “in a manner consistent with” this “fundamental characteristic”.
This could mean that if the French-speaking minority in Canada, or in any province, felt that Parliament or the provincial Legislature was failing to live up to its “commitment”, “, it could appeal to the courts, and the courts could order Parliament or the Legislature to do whatever the courts thought necessary to remedy the grievance. (The equalization section of the existing Constitution imposes a “commitment”; but it is careful to say: “Without altering the legislative authority of Parliament or of the provincial Legislatures, or the rights of any of them with respect to the exercise of their Legislative authority”. The Meech Lake Accord contains no similar safeguard.)
On the face of it, this could mean that the English-speaking minority in Quebec could appeal to the courts an alleged failure of the Legislature of Quebec to live up to its “commitment” to the principle of duality, and the courts could order the Legislature to do whatever they thought necessary to remedy the grievance.
But here enters the other new principle of interpretation of the Constitution. The Accord recognizes Quebec as “a distinct society” “affirms the role of the Legislature and Government of Quebec to preserve and promote the distinct identity of Quebec” as a “distinct society”, “, and imposes on the courts an obligation to interpret the Constitution “in a manner consistent with” this.
The two obligations might clash. The courts would have to decide which of the two took precedence. It is perfectly possible that they might rule that any action of the Quebec Legislature and Government which would otherwise be in violation of the Canadian Charter of Rights and Freedoms was constitutional because it was an exercise of Quebec’s right to “promote” the distinct identity of the province. The Quebec Minister of Intergovernmental Affairs has already suggested that if the Supreme Court of Canada, in a case now before it, finds that prohibition of bilingual signs in Quebec violates the Charter, the Quebec Legislature could re-impose the prohibition by an exercise of its constitutional power to promote Quebec’s identity.
What’s sauce for the goose would not necessarily be sauce for the gander.
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Originally published in bout de papier, Vol. 5, No. 2 (1987) — Summer 1987 // Été 1987, pp. 8–9. Read the rest of this issue →
