The accord dealt with a number of constitutional issues. For example, regarding the division of legislative powers, it provided for exclusive provincial jurisdiction over forestry, mining and some other areas. It also required the federal government to conduct negotiations with the provinces in order to "harmonize" policy in such areas as telecommunications, labour development and training, regional development and immigration. The provinces were given exclusive jurisdiction over cultural affairs. The federal government would, however, retain jurisdiction over national cultural institutions such as the Canadian Broadcasting Corporation and the National Film Board.
Two centralizing features in the Constitution are the federal power of reservation and DISALLOWANCE and the declaratory power in s92(10)(c) of the Constitution Act of 1867. The accord would have abolished the former and allowed the latter subject only to provincial consent. One important feature of the accord related to the use of the federal spending power. Because Parliament has far greater taxation authority than the provinces, it also has the greater spending authority. Over the years, this has led to financing arrangements under which the federal government finances, through transfer payments and other fiscal devices, all or part of programs that otherwise would fall within provincial legislative authority, such as medicare, social services, advanced education, etc. In so doing, the federal government has typically attached conditions on this financing arrangement. One such example is the prohibition of extra billing by doctors contained in the Canada Health Act. Again, typically, any province that authorizes a program or activity in contravention of these conditions would have to pay a financial penalty. The Charlottetown Accord allowed the provinces to establish their own programs in these areas with guarantees of federal compensation provided the provincial programs conformed to national standards.
The accord also would have given the provinces a constitutional right of compensation in the event a province opted out of any constitutional amendment that transferred provincial powers to the federal government. The need for compensation would have arisen because the province opting out would have had to fund its own programs within the scope of a particular legislative power. Had the federal government exercised the power obtained it would have had to have provided the funding.
The accord also provided for an enhancement of Canada's social and economic union. Regarding the former, it envisaged a "social charter" to seek and promote such objectives as health care, welfare, education, environmental protection and collective bargaining. Regarding the latter, it envisaged objectives such as internal free trade among the provinces with the elimination of barriers to the free flow of goods, services, labour and capital, and other provisions related to employment, standard of living and development.
Issue of Aboriginal Self-Government
The accord addressed the issue of aboriginal self-government but provided for a hiatus of 3 years before the concept would be juridically recognized. It also dealt with aboriginal representation in the Parliament of Canada.
The Charlottetown Accord also contained the so-called "Canada Clause" which set out the values that define the nature of the Canadian character. One of those values was the recognition that Québec is a distinct society within Canada. Other values included egalitarianism, diversity and other qualities of Canadian society. This provision, like the present s27 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS relating to multiculturalism, is an interpretive section, directing the courts to construe the Constitution with regard to the existence of these constitutionally entrenched values.
The accord also sought to make various institutional changes in the Canadian polity. For example, the Supreme Court of Canada, its composition and the appointment process were to be constitutionally entrenched. The Senate would have been changed in the following ways, reflecting the demands of many that Canada adopt a so-called "Triple E Senate" - an equal, elected and efficient Senate. Each province would have an equal number of senators, and the senators would be elected either by the legislature of each province or, at large, within each province. The accord reduced the powers of the Senate and, on some matters, required a so-called "double majority"; that is, a majority of the senators generally and a majority of francophone senators.
Changes were also proposed for the House of Commons. Following a redistribution, the number of seats in the House would be increased. In addition, any redistribution would require that a province could not have fewer seats than any other province with a smaller population. However, the province of Québec would never be allotted less than one-quarter of all the seats in the House.
The accord formally institutionalized the federal/provincial/territorial consultative process, allowing for aboriginal inclusion in the process in appropriate circumstances. The accord increased the number of matters in the existing amending formula that require unanimous consent for amendment.
Unlike the Meech Lake Accord, the ratification process here provided for a national referendum. In fact, 3 provinces had referendum legislation: British Columbia, Alberta and Québec. As it turned out, British Columbia and Alberta decided to participate in the federal referendum, with the result that 2 referenda asking the same question were held on the same day, 26 October 1992. The question posed in the referenda was simply as follows: "Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?"
Unreachable National Consensus
Nationally, 54% of the votes cast opposed the accord. It did, however, receive approval in New Brunswick, Newfoundland, Prince Edward Island, the Northwest Territories and, by the narrowest of margins, Ontario. After the failure of the Meech Lake Accord, Canadians again could not reach a national consensus during the Charlottetown debate and referenda.
Author GERALD L. GALL
Links to Other Sites
The website for the Historica-Dominion Institute, parent organization of The Canadian Encyclopedia and the Encyclopedia of Music in Canada. Check out their extensive online feature about the War of 1812, the "Heritage Minutes" video collection, and many other interactive resources concerning Canadian history, culture, and heritage.