The CONSTITUTION ACT, 1867 (formerly the BRITISH NORTH AMERICA ACT), with its authoritative division of powers between federal and provincial legislatures, is of central importance in the Canadian CONSTITUTION, but there are other sources of constitutional principles which also apply, among them unwritten custom or convention, and British and Canadian statutes and court decisions.
The unwritten convention that in order to remain in power a person appointed PRIME MINISTER or PREMIER should retain the support of the elected branch of the legislature, or that seats on the 9-member SUPREME COURT OF CANADA should be allocated regionally, are nowhere expressed in statutory form. Although not "laws" enforceable in the courts, such principles are of the utmost importance to effective constitutional government. The Supreme Court stated in 1981 during the patriation of the CONSTITUTION that "constitutional conventions plus constitutional law equal the total constitution of the country."
Since the courts will not enforce conventions, they can be implemented only by the people or by the CROWN. A government that violated a convention would almost certainly face electoral defeat or, in the extreme case, revolution.
The Crown, moreover, has the reserve power to dismiss a premier or prime minister who has clearly lost the confidence of the elected legislature and refuses to resign or have an election called. Such unwritten principles can be more important than many laws. According to British and Canadian constitutional theory, settlers bring with them to new shores those of their former laws that are appropriate to local circumstances.
Such English laws as the Bill of Rights (1689), with its concept of limited constitutional monarchy, and the Act of Settlement (1701), with its doctrine of an independent judiciary, are salient features of the Canadian Constitution. So too is the Canada Election Act. From France is derived Québec's CIVIL LAW system, and combination of the French heritage with the English has resulted in Canada's having 2 official languages.
From Britain comes the principle of parliamentary supremacy, modified in Canada's federal structure by the division of powers and an entrenched rights Charter, which were suggested by the classical model of the US.
The French Colonial System
Prior to 1663 control of the French colonies in North America was vested in chartered companies which exercised extensive administrative, lawmaking and judicial powers. It is uncertain what system of law was in effect. In 1663 France's North American possessions came under direct royal rule and the uncodified Coutume de Paris became the civil law of NEW FRANCE.
In the period of absolute monarchy Louis XIV acted through Jean-Baptiste Colbert, who supervised colonial affairs, and his 2 local officials, the GOUVERNEUR (governor) and the INTENDANT. The governor was military commander, negotiator with the natives and emissary to other colonial outposts. The intendant was overseer of civil administration and was responsible for settlement, finance, public order, justice and the building of public works. Although under royal rule there were no elected representative institutions, a SOVEREIGN COUNCIL, consisting of the governor, the intendant, the bishop and 5 other councillors, met weekly.
From 1663 to 1675 the councillors were nominated jointly by the bishop and governor; thereafter they were chosen by the king. The council dispensed justice swiftly and inexpensively, superintended spending and regulated the fur trade and other commercial activities. Limitations, or "servitudes," exempted civil officials from ecclesiastical discipline; no government official could be excommunicated for performing his duties, whatever they might entail. The church was also powerless to impose its taxes without the consent of the civil authorities.
The British Colonial System
During the 18th century France lost its North American territories to Britain. By the Treaty of UTRECHT (1713), ACADIA was ceded to Britain, although France retained control of Île Royale (Cape Breton), Île Saint-Jean (PEI) and part of modern New Brunswick. France interpreted in a restrictive sense the grant made under the treaty, arguing that the Acadians, who lived mostly on the western fringes of the territory, continued under French sovereignty.
Caught between rival European powers, the Acadians were expelled by the British in 1755. The French fortress of LOUISBOURG on Cape Breton fell to the British for the last time in 1758, the same year that the Nova Scotia Legislative Assembly (English Canada's oldest representative body) was convened in Halifax. When the SEVEN YEARS' WAR ended with the Treaty of PARIS (1763), the northern Atlantic seaboard, with the sole exception of Saint-Pierre and Miquelon, came indisputably under British rule.
In accordance with the ROYAL PROCLAMATION OF 1763, Governor James MURRAY was to extend English laws and institutions to Québec. He was instructed to govern with the assistance of a council of 8. An elected assembly was planned but did not appear. Murray's instructions also prescribed a Test Oath for officeholders which, because of its doctrinal content, no Catholic could conscientiously take. This provision would have resulted in all public offices being occupied by English-speaking Protestants, of whom there were only about 200, to the exclusion of nearly 70 000 French-speaking Catholics. Murray interpreted his instructions in such a way that he could govern through a 12-member appointed council.
English was the official language, but the government was conducted in French. Catholicism was tolerated; although the British at first refused to allow a bishop to be appointed to the vacant see, they made no difficulties when Jean-Olivier Briand was consecrated bishop in 1766. The Proclamation of 1763 also recognized native land title and provided that natives could relinquish their land only to the Crown and only collectively.
The substitution of British courts and laws in Québec created difficulties. The new Court of King's Bench convened only twice a year, making justice more costly and less expeditious than it had been under the Sovereign Council. With the abolition of the Coutume de Paris, the censitaires (tenants) on seigneuries suffered because their rents could be raised arbitrarily according to English law. Because of the Test Oath, no Catholics could practise law in the new Court of King's Bench, although they could practise in some inferior courts.
The QUEBEC ACT (1774) introduced nonrepresentative government by a colonial governor and an appointed council of 17-23 members. The Act was silent on the use of French, but a new oath allowed Roman Catholics to accept office. The council was not empowered to impose taxes, a matter separately dealt with under the Quebec Revenue Act. The SEIGNEURIAL SYSTEM was retained and French civil law was restored, supplemented by English criminal law.
Although Governor Sir Guy CARLETON was instructed to introduce English commercial law as well, he did not. The Act was unpopular with Americans because of its toleration of Catholicism and because it extended Québec's southwest boundary to the junction of the Mississippi and Ohio rivers, thus impeding American expansion. The Quebec Act became one of the "intolerable acts" which prompted Americans to revolt, but many historians feel its concessions helped encourage Québecois support of continued British rule.
The influx of LOYALISTS after 1783 led to the creation in 1784 of the separate colonies New Brunswick and Cape Breton from parts of Nova Scotia. In 1791 UPPER CANADA [Ontario] was separated from LOWER CANADA [Québec], with the Ottawa River forming the boundary. In Canada, by the CONSTITUTIONAL ACT, 1791, each of the 2 constitutive provinces was given a bicameral legislature.
The nominated executive council was appointed by the governor, whose responsibility was to the British COLONIAL OFFICE rather than to the people or their elected representatives. Thus, there was REPRESENTATIVE GOVERNMENT, but without the executive council being responsible to the assembly.
In the early 19th century the appointment to office of a few intimates of various governors led to charges of government by clique (see CHÂTEAU CLIQUE, FAMILY COMPACT; COUNCIL OF TWELVE). In 1837 unsuccessful rebellions broke out in both provinces of Canada. In the MARITIME PROVINCES executive power was enhanced and the assembly weakened by the division of Nova Scotia.
Cape Breton, which remained separate until 1820, lacked an assembly altogether and Prince Edward Island, which had possessed its own legislature from 1769 (having been joined briefly to Nova Scotia 1763-69), was at times in danger of losing it. Newfoundland had an appointed governor and acquired a representative assembly only in 1832.
Governor General Lord DURHAM, who came to Canada in 1838 after the recent insurrections, came to regard the French Canadians as unprogressive and lacking a history or culture. He feared that Québec would use any independent political powers it might acquire to frustrate the policies and objectives of the established government. Preferable, he argued, would be the "fusion" of Upper and Lower Canada in a legislative union with a single government dominated by the "more reliable" English-speaking elite. The governor's appointed executive council, moreover, must enjoy the support of a majority in the elected assembly.
Under the new system, the responsibility of the council ("Cabinet") would be to the elected assembly and indirectly to the electors, rather than to the Crown. Local policy would be decided at home. Matters of "imperial interest," such as constitutional changes, EXTERNAL RELATIONS, trade and the management of public lands, would remain with Britain.
The DURHAM REPORT marked the watershed between the first and second British empires, as British holdings, including Canada, began to change status from colonies to self-governing nations. The ACT OF UNION (1840; proclaimed 1841) established equality of representation between Canada East [Québec] and Canada West [Ontario] in the common legislature (although Canada East was much more populous) in order to ensure the political ascendancy of the "British" element throughout the reconstituted province.
After some hesitation, RESPONSIBLE GOVERNMENT was introduced in 1848 in Nova Scotia and in the PROVINCE OF CANADA, and was soon in effect throughout BNA. In 1849 Governor General Lord ELGIN courageously signed the REBELLION LOSSES BILL on the advice of his ministers, thus affirming the principle of responsible government. Elgin was also instrumental in introducing French as a language of debate in the Canadian legislature, although English was the sole official language.
The equal representation of sections made government of the Province of Canada unwieldy by promoting deadlock. By 1851 the English-speaking population outnumbered the French, and agitation began for "representation by population" instead of sectional parity. With George Brown's Reform Party energetically advocating REP BY POP and the Conservatives opposing it, a political stalemate lasted from 1858 to 1864. In 1864 the parties formed a GREAT COALITION with the federation of BNA as its object.
The imperial authorities were coincidentally relinquishing control over Canada. Unoccupied Crown lands were surrendered to the provinces, 1840-52; the British submitted to a Canadian tariff imposed on their imported goods in 1858. In 1865 the British Colonial Laws Validity Act affirmed that no colonial law could be challenged unless it was expressly in conflict with an imperial statute intended to apply to the colony.
Politicians from Canada East and West, the Maritimes and Newfoundland met at the CHARLOTTETOWN CONFERENCE in 1864 to discuss union. The QUÉBEC CONFERENCE and LONDON CONFERENCE saw further discussion, and CONFEDERATION of the provinces of Canada, Nova Scotia and New Brunswick was achieved on 1 July 1867.
At Confederation a PARLIAMENT of 2 chambers was established, with seats in the HOUSE OF COMMONS allocated on the basis of population, while each of the existing 3 regions (Ontario, Québec and the Maritime provinces) was given equal representation (24 seats) in the SENATE.
In 1915 the 4 western provinces became a full-fledged region with 24 senators, and Newfoundland received 6 in 1949. The Senate was conceived as a guardian of regional or provincial interests, but it did not play that role very effectively, especially since a federal Cabinet, drawn largely from the lower house and appointed on a regional basis, assumed that function.
Historians sometimes debate whether the federal PEACE, ORDER AND GOOD GOVERNMENT power was designed to endow Ottawa with jurisdiction over all matters not defined as exclusively provincial. If it were, federal jurisdiction would probably be enhanced, since the "powers" enumerated in s91 of the British North America Act would be presented merely to illustrate a single broad power embracing everything not given to the provinces.
The Federal System
Under the BNA Act those broad matters appropriately treated nationally (eg, defence, post office, trade and commerce, most communications, currency and coinage, weights and measures) were centralized, whereas powers over property, local works and undertakings, municipalities, and most private law matters (eg, contracts and torts) went to the provinces. Where a conflict occurs in "concurrent" areas such as agriculture and immigration, or in any subject matter (except old age pensions, where provincial paramountcy obtains), federal law prevails.
Under the Constitution (which contains, as constituent parts, all provincial constitutions), Canadian provinces, which were added or created at various times, are not all treated as equals. Saskatchewan, for example, was precluded in its founding statute from taxing the Canadian Pacific Railway, whereas Québec and Manitoba were required to publish their laws, and allow proceedings in their courts and legislature, in both English and French.
The Prairie provinces, unlike the original 4, did not own their natural resources when they entered Confederation, and only received them by transfer from Ottawa in 1930. Federal retention of such assets was defended by Ottawa on the grounds that the resources were needed for railway building and the settlement of immigrants. The Northwest Territories and the Yukon Territory possess elected legislatures but still do not own their lands or minerals, and they retain a semicolonial dependency on the federal government.
After Confederation some provinces advanced the "compact theory," which likened the BNA Act to a treaty that could be changed only by the unanimous consent of Ottawa and the provinces. Opponents of the theory denied its constitutionality, arguing that the final terms of the BNA Act were never ratified, since the Act was not an agreement but a statute of a superior legislature.
Provincial Rights and Federal-Provincial Conflict
With the centralist Macdonald at the helm of the national government for such a long time, premiers Honoré MERCIER of Québec and Oliver MOWAT of Ontario met in Québec City on 20 October 1887 with representatives from New Brunswick, Nova Scotia and Manitoba (BC and PEI did not participate) to promote "provincial rights" against an encroaching federal government.
The provinces censured the use of the federal power of DISALLOWANCE, which enabled Ottawa arbitrarily to nullify any provincial law; they called for appointment of senators by the provinces and affirmed the right of the provincial Crown to exercise prerogative powers such as the pardoning power over provincial offences. Macdonald chose to portray the "malcontents" as Liberals confronting their Conservative foes in Ottawa for political reasons.
Another sharp confrontation arose when Manitoba in 1890 purported to make English the only official language in the province, substituting, as well, a single public school system for the former Roman Catholic and Protestant schools. In 1895 the JUDICIAL COMMITTEE OF THE PRIVY COUNCIL agreed that the educational rights of the religious minority had been adversely affected, and thus enabled the minority to appeal to the federal Cabinet for redress.
When the Liberals assumed office in 1896, Prime Minister Laurier settled the matter by compromise. (In the 1979 Forest case the Supreme Court of Canada held the 1890 Manitoba language law invalid, casting some doubt on the legal validity of 90 years of provincial legislation, and requiring all future laws to be bilingual.)
Towards Constitutional Independence
The early 20th century saw further advances toward full Canadian independence. When WORLD WAR I began in 1914, by constitutional convention Canada was automatically included in the British declaration of war. After WWI Canada's separate signature at the Treaty of VERSAILLES and its membership in the LEAGUE OF NATIONS symbolized its developing independence.
In 1923 the Honourable Ernest LAPOINTE signed the HALIBUT TREATY without British participation (as formerly required), despite British objections. In 1926 Governor General Lord BYNG'S refusal to grant a dissolution of Parliament to PM Mackenzie KING was portrayed by the latter as imperial interference in Canada's domestic affairs, although Byng's refusal was constitutional (see also KING-BYNG AFFAIR).
At the Imperial Conference in the same year, the BALFOUR REPORT described the self-governing Dominions as autonomous and equal communities within the British Empire (see alsoCOMMONWEALTH). In 1931 the STATUTE OF WESTMINSTER stipulated that the imperial Parliament would no longer legislate for a Dominion unless the latter requested and consented to the law.
Other provisions empowered local legislatures to enact laws even if repugnant to the Colonial Laws Validity Act, and allowed Canada to legislate extraterritorially, eg, establishing shipping laws applying to Canadian vessels on the high seas or applying criminal law to Canadian military personnel serving abroad. The statute affirmed (at least according to the provinces) that provincial jurisdiction could not be unilaterally altered by the newly sovereign federal power.
After 1931, in constitutional theory, London was no more central politically than was Ottawa or Canberra, Australia. The Crown, formerly indivisible, now became divided. In 1939 Canada made a separate declaration of war. Treaties between Canadian Indian bands and the British Crown were now deemed to be the concern of the Canadian government. The monarch became king or queen of Canada, with the GOVERNOR GENERAL acceding to all the remaining prerogative powers in 1947.
In 1949 a constitutional amendment enabled Parliament to make amendments solely affecting the federal power (eg, redistribution of seats in the House of Commons), with designated exceptions in sensitive areas (eg, the requirement of holding annual sessions of Parliament). Other indications of sovereignty were the Canadian Citizenship Act (1947) and the adoption of the maple leaf flag in 1965 (see also FLAG DEBATE).
Between 1934 and 1949 Newfoundland was governed by an appointed COMMISSION OF GOVERNMENT which had full lawmaking powers. After WWII, debate arose about Newfoundland's future. Peter CASHIN, a former Newfoundland finance minister, advocated a return to Dominion status, while Joseph R. SMALLWOOD led the pro-Confederation forces.
Some Newfoundlanders supported the retention of commission government. In the second of 2 referenda held in 1948, the Confederation forces prevailed, and in 1949 Newfoundland became Canada's 10th province, with 6 senators and 7 members of Parliament.
Until 1949, when overseas appeals were abolished, the British Privy Council was Canada's ultimate court of appeal, overshadowing Canadian courts. Some important appeals had been made directly from provincial tribunals to Britain without any participation by the Supreme Court of Canada (established 1875). Lords Watson and Haldane, in particular, decentralized the centralist provisions of the BNA Act, demoting the federal peace, order and good government power and expanding provincial jurisdiction over property and civil rights.
In 1929 the Judicial Committee of the British Privy Council ruled that women were legal "persons" capable of being summoned to the Senate (see alsoPERSONS CASE). In 1932 the JCPC granted power over aeronautics and radio to Ottawa. In 1937, however, it eviscerated PM R.B. Bennett's "New Deal" social program (see BENNETT'S NEW DEAL), gravely curtailing federal power over such matters. Judicial metaphors such as "living tree" and "watertight compartments" denoted alternate phases of centralist and provincialist interpretation.
In 1937 Alberta Premier ABERHART attempted to enact a Social Credit legislative program that invaded federal jurisdiction, particularly the federal power over banking. When the provincial legislation was disallowed a bitter confrontation ensued, but the courts later upheld the federal position.
The Rowell-Sirois Report: Restructuring Federalism
The Rowell-Sirois Commission, appointed by Mackenzie King's government in 1937, made far-reaching economic recommendations for restructuring the Canadian federation (see also DOMINION-PROVINCIAL RELATIONS, ROYAL COMMISSION ON). The commissioners said that Ottawa should have the exclusive right to levy personal and corporate income taxes and succession duties (concurrent fields under the BNA Act).
In return, the federal government would assume all provincial debt and certain responsibilities over relief and unemployment insurance (which the court had just consigned to the provinces), and would pay the less affluent provinces a "National Adjustment Grant," enabling them to maintain services at the average national level. Québec's Tremblay Commission (1953-56), established by Premier Maurice DUPLESSIS, saw this proposal as too centralist, arguing for the principle of "subsidiarity": likening FEDERALISM to a pyramid, he suggested that as many economic functions as possible should be carried out by local organizations at the base (eg, municipalities, co-operatives, churches), with the federal government at the apex performing only those limited economic functions beyond the capacities of local groups. This concept, of course, would powerfully reinforce provincial autonomy.
The Rowell-Sirois Commission's 1940 recommendations were never really implemented, although the EQUALIZATION PAYMENTS to the provinces, begun by PM Louis ST. LAURENT after the marked centralization of powers during WWII, achieved a similar purpose. In one form or another, federal equalization payments to less wealthy provinces have continued.
Although unemployment insurance was centralized by an amendment, the richer provinces (Ontario, Alberta, BC) objected to subsidies to the poorer provinces which they would have had to fund. The federal "spending power" was used to fund FAMILY ALLOWANCES, and shared-cost programs entered into jointly with the provinces, such as OLD-AGE PENSIONS and medicare. These costly social programs placed an enormous strain on all governments in the late 1970s and early 1980s, leading some politicians to question the constitutionality of universal coverage.
With the proclamation of the WAR MEASURES ACT in both world wars and during the 1970 OCTOBER CRISIS, the federal Cabinet acquired all legal powers essential to cope with the existing emergencies (whether or not such powers would ordinarily fall under provincial jurisdiction); constitutionally speaking, for the duration of and in relation to the emergency, under the Act it is almost as if the constitutional division of powers did not exist.
The Québec Independence Movement
An important constitutional development in 1969 was the OFFICIAL LANGUAGES ACT (see OFFICIAL LANGUAGES ACT (1988)), which declared English and French to be Canada's "official languages," and extended an array of government services in both tongues to all citizens. The election of the separatist PARTI QUÉBÉCOIS in Québec on 15 November 1976 emphasized that the threat of SEPARATISM was real, but in a referendum on 20 May 1980 Québec voters rejected the provincial government's SOVEREIGNTY-ASSOCIATION option by a margin of 60-40%.
PM Pierre E. TRUDEAU supported continued federalism by promising Québec constitutional renewal in the event of a negative vote. After a deadlocked federal-provincial conference, he announced on 2 October 1980 that Ottawa proposed to entrench unilaterally the core of a new Constitution embracing a domestic amending formula and a rights charter (the CANADIAN CHARTER OF RIGHTS AND FREEDOMS) which would replace PM DIEFENBAKER'S 1960 CANADIAN BILL OF RIGHTS. Trudeau emphasized that an amending formula had eluded federal-provincial negotiators since 1927.
The Debate Over an Amending Formula
The controversy in the 1980s pitted Ottawa and 2 provincial allies, Ontario and New Brunswick, against the other 8 provinces. Central to the debate was whether, by convention, provincial consent was required before an amendment could be obtained from Britain affecting provincial rights, privileges or powers. In September 1981 the Supreme Court held that although Ottawa had the legal power to present a joint address of the Senate and House of Commons to Westminster seeking an amendment, it was improper, by convention, to do so without a "consensus" (undefined, but at least a clear majority) of the provinces.
Since neither Ottawa nor the dissenting provinces had won outright, compromise was essential, and all parties except Québec reached agreement on 5 November 1981. Spokesmen for Québec argued that according to the "duality" principle the concurrence of both English- and French-speaking Canada was required for basic constitutional change, and that the absence of one "national" will constituted a veto.
All the other parties denied the existence of the "duality" principle in the form asserted by Québec. Left unresolved for future consideration were such knotty problems as constitutional revision of the division of powers and institutional reform of the Supreme Court, the Senate and the Crown.
The Meech Lake Accord
Québec's acceptance of constitutional reform seemed secured in June 1987 when the first ministers completed the text of the MEECH LAKE ACCORD (see MEECH LAKE ACCORD: DOCUMENT) reached earlier in the year on the initiative of PM Brian MULRONEY. Québec was recognized as a "distinct society" and its legislature and government was empowered to preserve and protect the province's distinct identity. English-speaking Canadians within Québec and French-speaking Canadians outside its borders were also constitutionally acknowledged.
In future provinces would have submitted names acceptable to the federal government for appointment by the latter as vacancies arose in the Senate and the Supreme Court of Canada. Only when the chief justice was appointed from among the sitting members of the Supreme Court was the appointment to have been an exclusively federal responsibility. Three of the 9 members of the entrenched Supreme Court were to have been Québec barristers trained in the province's distinctive civil law system.
Until unanimous federal-provincial agreement for change was secured, moreover, no change was to have been made to the Senate or the Supreme Court. Some people considered that this meant the end of any realistic prospect of Senate reform, although annual conferences of first ministers were to be held to consider reform of the upper house.
Where new initiatives were established by Ottawa under the federal spending power, such as a national day-care program or a minimum guaranteed annual income, provided that their alternative programs "conformed to the national objectives," provinces could get out and would have received reasonable compensation from Ottawa to fund their own programs.
The admission as provinces of the Yukon or the Northwest Territories was to require the consent of all federal and provincial legislative bodies, rather than just the agreement of Parliament and 7 provinces having half the total population, as in the Constitution Act, 1982, or the simple federal statute required before that date.
All provinces were also to have been given, in addition, a share in the immigration process. In order to be entrenched, Parliament and each provincial legislature had to accept the proposed Meech Lake text as it stood within 3 years after Parliament's enabling resolution was passed. Any change in the proposed text required unanimous agreement.
Collapse of the Meech Lake Accord
Public support for the agreement in 1987, according to polls, was over 66%. By July 7 the House of Commons (with a vote of 242 for and 16 against) and all the provinces except Manitoba and New Brunswick had passed the Accord. However, opposition grew in the media and among certain interest groups, particularly those representing native peoples, women's groups, Francophones outside Québec, and the territories (seeing the Accord as precluding them ever attaining provincial status). In October 1989 a Manitoba task force challenged the distinct society clause and other aspects of the Accord.
Meanwhile governments changed and new premiers such as Frank MCKENNA of New Brunswick voiced their opposition, although NB gave its approval in March 1990. Eventually opposition coalesced around the figure of Nfld premier Clyde WELLS, who strongly objected to the distinct society clause. His government rescinded its approval on 6 April 1990.
In desperation to save the Accord, PM Mulroney called the premiers together in June. On June 9 the First Ministers emerged with a signed agreement, though Wells's approval was conditional, he said, on the approval of the "Newfoundland people or the legislature."
When procedural delays initiated by MLA Elijah HARPER threatened to extend Manitoba's approval beyond the deadline, Wells refused to take a vote in the Nfld legislature on the grounds that the situation in Manitoba made it irrelevant. The deadline expired and the Accord died. The failure of the Accord left a sense of bitterness and frustration. Many Quebeckers interpreted its failure as a rejection of Québec and support for pulling out of Canada soared in that province.
The Charlottetown Accord
A new round of negotiations began even before Meech Lake died as in February 1990 the Québec Liberal Party established a committee to study options if the Accord failed (with Jean Allaire chair). In June Québec premier Bourassa announced that he would not attend constitutional talks and would only deal bilaterally with Ottawa. Later that month Bourassa and Jacques Parizeau announced a special Joint Commission to study Québec's relationship with Canada. Hearings began November 6 with cochairs Jean Campeau and Michel Bélanger.
Meanwhile, on the federal front, to answer criticisms that the constitutional process was too closed, in November 1990 Mulroney launched the Citizen's Forum on Canada's Future, with Keith Spicer chair. Finally in December a special 17-member Joint Senate-Commons Committee was created to devise a new amending formula, with Gerald Beaudoin and Jim Edwards cochairs. By December 8 provinces had established or completed constitutional investigations.
Bélanger-Campeau finished their hearings December 20, after some 200 briefs and 600 submissions. One of its first reports stated that the cost of Québec independence would be minimal. The Committee reccommended that a referendum should be held on sovereignty in Québec by October if the province did not receive a suitable offer from the rest of Canada.
In January 1991 the Allaire Committee recommended that the Senate be abolished and that Québec receive exclusive power over communications, energy, environment, agriculture and regional development. The Québec Liberal Party adopted the Allaire Report in March, but substituted an elected Senate. In May the Québec legislature introduced a bill for a referendum to be held on the constitutional issue by October 1992.
To co-ordinate the various negotiations and recommendations, Mulroney named Joe CLARK minister responsible for Constitutional Affairs in April 1991. Yet another public forum was created in June when the Parliamentary Committee on the Constitution was created, with Dorothy Dobbie and Claude CASTONGUAY cochairs.
The Edwards-Beaudoin Commons Committee reported 20 June 1991 on the amending formula, recommending that
1) ratification of constitutional changes take 2 years, not 3;
2) a "regional" veto;
3) a national referendum for major changes;
4) unanimous consent for changes involving the monarch, language and provincial control of resources;
5) all other changes require consent of Ottawa, Ontario, Québec, 2 Western and 2 Atlantic provinces.
In June the Spicer Commission released its report, recommending that the government review its institutions and symbols to foster a sense of country, that Québec be recognized as a unique province, that there be a prompt settlement of native land claims and that the Senate be reformed or abolished.
In September 1991 the Dobbie-Castonguay Parliamentary Committee released its proposals in "Shaping Canada's Future Together." The proposals includes recognition of Québec as a "distinct society," entrenchment of ABORIGINAL SELF-GOVERNMENT within 10 years, the inclusion of a "Canada clause" in the Constitution, an elected Senate with more powers and "equitable" (not equal) representation. Castonguay resigned the troubled committee in November, replaced by Gerald Beaudoin.
In March 1992 the now "Dobbie-Beaudoin" Committee recommended a Québec veto on all constitutional change; recognition of Québec as a "distinct society"; rejection of a "Triple E" Senate but a recommendation for elected, effective and "equitable" Senate subordinate to the House of Commons.
Using the report as a basis for negotiations, Clark set a deadline of May 31 for Ottawa and the provinces to come up with a constitutional offer for Québec. He finally reached a deal with the 9 provincial premiers in July. The deal included a "Triple-E" Senate.
Collapse of the Charlottetown Accord
Clark's deal met with a lukewarm response from Bourassa, but it did bring him back to the table in August. The First Ministers emerged with the text of a new agreement on 22 August and finalized it on August 28.
The key points of what became known as the CHARLOTTETOWN ACCORD were a Social Charter, elimination of provincial trade barriers, a Canada clause containing committments to native self-government and recognition of Québec as a distinct society, a veto for all provinces on all changes to national institutions, a new 62-seat Senate (6 for each province and one for each territory) and 18 new seats in the House of Commons for Ontario and Québec, 4 for BC and 2 for Alberta. The Accord was rejected by 6 provinces and the Yukon in a national REFERENDUM on 26 October 1992 (see CHARLOTTETOWN ACCORD: DOCUMENT).
As a result of the failure of the Meech Lake and Charlottetown Accords, a second Québec referendum on separation was held in the fall of 1995. The vote on separation was narrowly defeated and led to a number of political and legal developments. Politically, the Premier of Québec, Jacques Parizeau (who led the pro-separation forces), resigned and Lucien Bouchard, former leader of the separatist Official Opposition in Parliament, the Bloc Québécois, became Premier of Québec. Parliament enacted legislation recognizing Québec as a distinct society within Canada and committed itself to future constitutional amendments (relating to national institutions such as the Senate, the creation of new provinces and changes to the distibution of legislative powers) without the consent of Ontario, Québec, BC, at least 2 of the Atlantic provinces (provided those 2 provinces constituted 50% of the population of the Atlantic region) and at least 2 of the prairie provinces (provided those 2 provinces constituted 50% of the population of the prairie region).
Following these developments, in September 1997, the premiers of nine provinces (Québec's Lucien Bouchard was absent) agreed at a meeting in Calgary to a new framework for discussion to preserve Canadian unity. The authors of the so-called Calgary Declaration proposed, among other principles, that all provinces, while diverse, possessed equality of status, but recognized the unique character of Québec society, including its culture and tradition of civil law. Within a year, all provincial legislatures, with the exception of Québec, had endorsed the declaration.
In addition to these ongoing political developments, the matter of separation was brought before the courts in a case launched in Québec to determine the legality of the separation of a province under domestic constitutional law and under the rules and principles of public international law. The Supreme Court of Canada held that separation, apart from the possibility of formal constitutional amendment, was illegal under both domestic Canadian and public international law. However, the Court also recognized that if a clear majority of Quebeckers voted in favour of separation in a referendum based on a clear question, then there was an obligation for the federal and provincial governments to engage in negotiations in good faith on the issue of separation. A third referendum is expected to be held if and when, according to Québec premier Lucien Bouchard, "winning conditions" exist.
(See QUÉBEC REFERENDUM).
W.J. Eccles, France in America (1972); D. Lindsay Keir, The Constitutional History of Modern Britain 1485-1937 (1966); Arthur R.M. Lower, Colony to Nation (1977); W.H. McConnell, Commentary on the British North America Act (1977); G.F.G. Stanley, A Short History of the Canadian Constitution (1969).