The Canadian Constitution, the supreme law of the land, has been in constant evolution from colonial times until the present day.
The Canadian Constitution, the supreme law of the land, has been in constant evolution from colonial times until the present day. The story of the Constitution is the story of Canada itself: reflecting the shifting legal, social and political pressures facing Canadians, and their choices as a society.
What is the Constitution?
Canada's Constitution is made up of written laws or statutes, as well as customs or conventions, and also British and Canadian court decisions.
On the statute side, the Constitution Act, 1867 (formerly the British North America Act), with its division of powers between federal and provincial legislatures, is of central importance in the Canadian Constitution. The Constitution Act, 1982, which includes the Charter of Rights and Freedoms, is also of high importance.
On the custom side, the unwritten conventions 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 nine-member Supreme Court of Canada should be allocated regionally, are nowhere expressed in any statute. Although these are 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 constitutional 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 also features of the Canadian Constitution. So too is the Canada Election Act. From France is derived Québec's Civil Law system.
From Britain comes the principle of parliamentary supremacy, modified in Canada's federal structure by the Constitutionally entrenched division of powers and Charter of Rights — both of which were influenced by the American system.
Constitutional Evolution, Pre-Confederation
French Colonial Period
Prior to 1663, control of the French colonies in North America was given to 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 Coutume de Paris became the civil law of New France.
French King Louis XIV acted through Jean-Baptiste Colbert, who supervised colonial affairs along with his two local officials, the gouverneur (governor) and the intendant. The governor was military commander, negotiator with the Aboriginal people 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 five 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, managed spending and regulated the fur trade and other commercial activities. Limitations, or "servitudes," exempted civil officials from church discipline; no government official could be excommunicated by the Catholic church for performing his duties, whatever they might entail. The church was also powerless to impose its taxes without the consent of the civil authorities.
British Take Control
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 (Prince Edward Island) 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), all of New France including the northern Atlantic seaboard, with the sole exception of the islands of Saint-Pierre and Miquelon, came indisputably under British rule.
Royal Proclamation, 1763
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 eight. An elected assembly was planned but did not appear. Murray's instructions also prescribed a Test Oath for office-holders, which, because of its religious 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 government was conducted in French. Catholicism was tolerated. The Proclamation of 1763 also recognized Aboriginal land title and provided that Aboriginal people 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, tenant farmers on seigneurial lands 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.
Quebec Act, 1774
The Quebec Act of 1774 introduced 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 westward American expansion. The Quebec Act became one of the "intolerable acts" which prompted Americans to revolt, but many historians feel its concessions helped encourage French Canadian support of continued British rule.
Constitutional Act, 1791
The influx of Loyalists after the American Revolution 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. By the Constitutional Act, 1791, each of the two Canadas was given a bicameral (two-house) 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 elected 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). Partly as a result, in 1837, unsuccessful rebellions broke out in both Upper and Lower 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. Prince Edward Island, which had possessed its own legislature since 1769 (having been joined briefly to Nova Scotia from 1763 to 1769), 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 the Canadas in 1838 after the recent rebellions, regarded French Canadians as unprogressive and lacking a history or culture — a view that outraged French Canadian elites. Durham feared 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, he added, must enjoy the support of a majority in the elected assembly. This meant the council (Cabinet) would be responsible for its power to the elected assembly and indirectly to the electors, rather than to the Crown or the governor.
Local policy would be decided at home, but 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 evolve from colonies to self-governing nations. As a result of the report, the Act of Union was created in 1841, unifying Canada East (Québec) and Canada West (Ontario) into a single Province of Canada, with equal representation in a common legislature (even though Canada East was much more populous). This was done 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 British North America. 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.
Canada East and West made government of the province unwieldy by promoting deadlock. By 1851, the English-speaking population outnumbered the French, and agitation began for "representation by population" instead of East-West 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, however, the parties formed a Great Coalition with the political separation of the two Canadas — but the federation of all British North America — as its object.
The imperial authorities were at the same time relinquishing control over Canada. Unoccupied Crown lands were surrendered to the provinces. The British submitted to a Canadian tariff imposed on their imported goods in 1858. And in 1865, the British Parliament 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.
Constitutional Evolution, Post-Confederation
British North America Act
Under the new country's constitutional statute, the British North America (BNA) Act — a federal Parliament of two chambers — was established in Ottawa. Seats in the House of Commons were allocated on the basis of population, while each of the existing three regions (Ontario, Québec and the Maritime Provinces) was given equal representation (24 seats) in the Senate.
In 1915, the four western provinces became a full-fledged region with 24 senators of their own, and Newfoundland received 6 upon joining Canada in 1949. The Senate was conceived as a guardian of regional or provincial interests, but it has not played that role very effectively, becoming divided on partisan lines and Senators voting as members of a party caucus rather than as representatives of a region.
Under the BNA Act, broad national matters (e.g., defence, postal service, trade and commerce, most communications, currency and coinage, weights and measures) are centralized, whereas powers over property, municipalities, and most private law, are controlled by the provinces. Where a conflict occurs in shared areas such as agriculture and immigration, or in any subject matter (except old-age pensions, where provincial power is utmost), federal law prevails.
Under the Constitution (which includes 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 four (Nova Scotia, New Brunswick, Québec and Ontario) 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.
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.
With the centralist Prime Minister John A. 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 (British Columbia and PEI did not participate) to promote "provincial rights" against an encroaching federal government.
The provinces objected to the federal power of disallowance, which enabled Ottawa to arbitrarily 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, in 1890, Manitoba 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 (see Manitoba Schools Question). 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 Wilfrid Laurier settled the matter by compromise. In the 1979 Forest case, the Supreme Court of Canada held the 1890 Manitoba English-only 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 the First World War began in 1914, by constitutional convention Canada was automatically included in the British declaration of war. After the war, Canada's separate signature at the Treaty of Versailles and its membership in the League of Nations symbolized its developing independence.
In 1923, 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 Prime Minister William Lyon 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 also Commonwealth). 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 in the Statute empowered local legislatures to enact laws even if repugnant to colonial policy and allowed Canada to legislate extraterritorially — e.g., 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.
A Canadian Crown
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 to enter the Second World War. Treaties between Canadian First Nations 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 1952, Vincent Massey became the first Canadian-born governor general, and he was succeeded in 1959 by Georges Vanier. Thereafter, incumbents from English- and French-speaking Canada alternated in the governor general's office.
In 1949, a constitutional amendment enabled Parliament to make constitutional changes solely affecting the federal power (e.g., redistribution of seats in the House of Commons), with designated exceptions in sensitive areas (e.g., 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, formerly a self-governing colony, was governed by a British-appointed Commission of Government which had full lawmaking powers. After the Second World War, debate arose about Newfoundland's future. Peter Cashin, a former Newfoundland finance minister, advocated a switch to Dominion status, while Joseph R. Smallwood led the pro-Confederation forces who sought to join Canada.
Some Newfoundlanders supported the retention of commission government. In the second of two referenda held in 1948, the Confederation forces prevailed, and in 1949 Newfoundland became Canada's 10th province, with six senators and seven members of Parliament.
British Privy Council
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 status of 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 also Persons Case). In 1932, the Committee granted power over aeronautics and radio to Ottawa. In 1937, however, it curtailed Prime Minister R. B. Bennett's "New Deal" social program (see Bennett's New Deal), gravely reducing federal power over such matters, deemed instead to be provincial jurisdiction.
In 1937, Alberta Premier William 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 by Ottawa, a bitter confrontation ensued, but the courts later upheld the federal position. The issue triggered the appointment of the Rowell-Sirois Commission on Dominion-Provincial Relations.
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. The commissioners said Ottawa should have the exclusive right to levy personal and corporate income taxes and succession duties.
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 (e.g., 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 Prime Minister Louis St. Laurent after the marked centralization of powers during the Second World War, achieved a similar purpose. In one form or another, federal equalization payments to less wealthy provinces have continued.
Although employment insurance was centralized federally by an amendment, the richer provinces (Ontario, Alberta, BC) objected to subsidies to the poorer provinces which their residents would have had to fund. The federal "spending power" was used to fund family allowances, and shared-cost programs were entered into jointly with the provinces, . 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.
Secession, Patriation and Beyond
Québec Independence Movement
An important constitutional development in 1969 was the federal 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 in 1976 emphasized that the threat of separatism was real, but in a referendum in 1980, Québec voters rejected the provincial government's Sovereignty-Association option by a margin of 60-40%.
Prime Minister Pierre Trudeau promised Québec constitutional renewal in the wake of the vote. After a lengthy and deadlocked federal-provincial conference, he announced that Ottawa would unilaterally entrench, in the core of a new Constitution, both an amending formula and a rights charter (the Canadian Charter of Rights and Freedoms), which would replace Prime Minister John Diefenbaker's 1960 Canadian Bill of Rights. Trudeau emphasized that a constitutional amending formula had eluded federal-provincial negotiators since 1927.
Patriating the Constitution
Trudeau's controversial bid in the 1980s to overhaul the Constitution and to "patriate" — or bring the Constitution under Canadian rather than British legislative oversight — pitted Ottawa and two provincial allies, Ontario and New Brunswick, against the eight other provinces. Central to the debate was whether, by convention, provincial consent was required before constitutional change 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 Parliamentary request 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. (See Constitution Reference (1981).))
Since neither Ottawa nor the dissenting provinces had won an outright decision of the court, 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 created, in effect, a veto on the agreement.
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. Still, the Constitution was renewed and "patriated" from Britain in 1982, with the Charter of Rights and an amending formula — approval of the federal Parliament and the legislatures of seven provinces having at least half the population — at the heart of the amended document.
Meech Lake Accord
After refusing to put its provincial signature on the patriated 1982 Constitution, Québec's acceptance finally seemed secured in June 1987 when the first ministers of the federal and provincial governments reached agreement on a series of reforms spelled out in the Meech Lake Accord (see Meech Lake Accord: Document). The deal was reached earlier in the year on the initiative of Prime Minister Brian Mulroney. Under the Accord:
- Québec was recognized as a "distinct society" and its legislature and government were 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 order for the Accord's provisions to be entrenched in the Constitution, Parliament and each provincial legislature had to accept the Accord within three years after Parliament's enabling resolution was passed. Any change in the proposals required unanimous agreement.
- All provinces would be given, in addition, a share in the immigration process.
- The admission as provinces of the northern territories would require consent of all federal and provincial legislatures, rather than just the agreement of Parliament and seven provinces having half the total population – as in the Constitution Act of 1982, or the simple federal statute required before that date.
- 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 – provinces could opt out and receive reasonable compensation from Ottawa to fund their own programs, provided their alternative programs "conformed to the national objectives."
- No constitutional changes would be made to the Senate or the Supreme Court without unanimous federal-provincial approval. (Some believed this would mean 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.)
- Provinces would submit names acceptable to the federal government for appointment by Ottawa 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 would the appointment be an exclusively federal responsibility. Three of the nine members of the Supreme Court would be Québec lawyers trained in the province's distinctive civil law system.
Collapse of the Accord
Public support for the agreement in 1987, according to polls, was more than 66 per cent. By July the House of Commons (with a vote of 242 for and 16 against) and all the provincial legislatures 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 (which believed the Accord would prevent them from ever attaining provincial status). In 1989 a Manitoba task force challenged the legality of 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 the New Brunswick legislature gave its approval in 1990. Eventually opposition coalesced around the figure of Newfoundland premier Clyde Wells, who strongly objected to the distinct society clause. His government rescinded its approval in April 1990.
In desperation to save the Accord, Mulroney called the premiers together in June 1990. On 9 June, the First Ministers emerged with a signed agreement, though Wells' approval was conditional, he said, on the approval of the "Newfoundland people or the legislature."
When procedural delays, initiated by Manitoba MLA Elijah Harper, threatened to extend that province's approval beyond the deadline, Wells refused to take a vote in the Newfoundland legislature on the grounds that the situation in Manitoba made it irrelevant. The deadline expired and the Accord died. The result was bitterness and frustration. Many Québécois interpreted the Accord's failure in English Canada as a rejection of Québec. Support for pulling out of Canada soared in that province.
A new round of negotiations began even before Meech Lake Accord died. 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 Robert Bourassa announced that he would not attend constitutional talks and would only deal bilaterally with Ottawa. Later that month Bourassa and Jacques Parizeau also announced a special Joint Commission to study Québec's relationship with Canada. Hearings began in November with co-chairs 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 as 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 co-chairs. By December, eight provinces had established or completed constitutional investigations.
Bélanger-Campeau finished their hearings on 20 December, after some 200 briefs and 600 submissions. One of its first reports stated that the cost of Québec independence would be minimal. The Committee recommended that if Québec did not receive a suitable offer from the rest of Canada by October, a referendum on sovereignty be held.
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, 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 coordinate 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 co-chairs.
The Edwards-Beaudoin Commons Committee reported in June 1991 on the amending formula, recommending:
- Ratification of constitutional changes should take two years, not three.
- A "regional" veto.
- A national referendum for major changes.
- Unanimous consent for changes involving the monarch, language and provincial control of resources.
- All other changes require the consent of the federal Parliament and the legislatures of Ontario, Québec, two western and two 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 included recognition of Québec as a "distinct society," entrenchment of Aboriginal self-government in the Constitution within 10 years, the inclusion of a "Canada clause" in the Constitution (elaborating various Canadian values, such as egalitarianism and diversity), an elected Senate with more powers and "equitable" (but 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"; and a recommendation for an elected, effective and "equitable" Senate subordinate to the House of Commons.
Using the report as a basis for negotiations, Clark set a deadline of 31 May for Ottawa and the provinces to come up with a constitutional offer for Québec. He finally reached a deal with nine English-speaking provincial premiers in July. The deal included a "Triple-E" Senate.
Failure of Charlottetown Accord
Clark's deal met with a lukewarm response from Québec Premier Robert Bourassa, but it did bring him back to the table in August. The First Ministers reached a new agreement on 28 August.
The key points of what became known as the Charlottetown Accord were a Social Charter, elimination of provincial trade barriers, a Canada clause containing commitments 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 ultimately rejected by Canadians in six provinces and 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 (the "No" side won by only 50.58 per cent) 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 Official Opposition in Parliament, the separatist Bloc Québécois, became Premier of Québec.
In September 1997, the premiers of nine provinces (Québec's Lucien Bouchard was absent) agreed at a meeting in Calgary to a new approach to preserving 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.
Constitutional Veto Law
Following the near miss of the 1995 referendum, the government of Prime Minister Jean Chrétien passed a law in Parliament that recognized Québec as a distinct society within Canada and gave vetos to the provinces on constitutional change. The law requires the federal government to obtain consent for any proposed amendment from each of Québec, Ontario and British Columbia, as well as at least two provinces representing half the populations of both Atlantic Canada and the Prairies (effectively, a veto for Alberta).
This 1996 veto law, however, is largely a political measure. It does not carry the same legal weight as the amending formula written into the Constitution in 1982, which says most constitutional change requires the approval of Parliament plus any seven provinces with 50 per cent of the population (the 7/50 rule). Unanimous federal-provincial consent is required for major changes to the country's governing institutions.
After the 1995 Quebec referendum, Chrétien also referred the question of separation to the Supreme Court of Canada. His government asked the Court, in the Québec Secession Reference, if it was legal for Québec to unilaterally secede from Canada, under both domestic constitutional law and international law.
The Court's nine justices said unilateral secession would be illegal without a formal constitutional amendment. They added, however, that if a clear majority of Québecers voted in favour of separation based on a clear referendum question, then the federal and other provincial governments would be constitutionally obligated to engage in good faith negotiations with Québec on the issue. The Court also said any separation must conform to basic principles such as the rule of law, protection of minorities and democracy. The Court did not say precisely what would be considered a clear majority or a clear question, leaving this up to "political actors" to determine.
The Chrétien government responded with the Clarity Act, introduced in Parliament in 1999. The Act, though controversial, especially in Québec, was passed by Parliament and became law the following year. It gives the House of Commons — not the Senate or the provinces — exclusive power in determining whether a referendum question on separation is clear and whether there is a clear majority in a referendum vote.
Québec's Parti Québécois government reacted to the Clarity Act by passing Bill 99, which says the province can unilaterally separate from Canada following a referendum vote of 50 per cent plus one. It is unclear whether Bill 99 or the Clarity Act would withstand constitutional scrutiny, since neither law has been tested at the Supreme Court of Canada.
Following the election of his Conservative government in 2006, Prime Minister Stephen Harper introduced a motion in the House of Commons that recognized the Québécois people "as a nation within a united Canada." The motion was overwhelmingly supported in the House; however, it prompted the resignation of Harper's intergovernmental affairs minister Michael Chong, who said the motion could be interpreted as promoting ethnic nationalism in Canada.
Political efforts to reform the Senate — in part, by turning it from an unelected chamber whose members are appointed by the prime minister, into an elected body similar to the House of Commons — have been underway for decades. These have been hamstrung, however, because the Senate is a creature of the Constitution.
In 2011, the Harper government introduced the Senate Reform Act in Parliament, seeking to impose nine-year term limits on senators (who can now hold their office until age 75), and to allow provinces to elect senators if they choose to do so. The legislation was challenged by the Québec government, and in 2013, the Québec Court of Appeal ruled the Act unconstitutional, saying the changes could not be made by Parliament alone, but required a constitutional amendment.
The Harper government responded by referring the matter to the Supreme Court. The Court's nine justices ruled unanimously in 2014 that any substantial change to the Senate — including imposing term limits on senators and creating an elected Senate — required a constitutional amendment covered by the 7/50 rule (consent of 7 provinces with 50 per cent of Canada's population). Also in response to the government's query, the Court said abolishing the Senate required a constitutional amendment unanimously endorsed by all 10 provincial legislatures and the federal Parliament.
Unwilling to undertake the political negotiations with the provinces necessary to obtain such consent, Harper declared Senate reform a dead issue for the foreseeable future. "We're essentially stuck with the status quo for the time being," he said.
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).