This article was written by a law student for the general public.
Following the failure of the Meech Lake Accord in 1990, a series of deliberations took place on the future of Confederation both within and outside of Quebec. In fact, there were four bodies empanelled to engage in these discussions – a parliamentary and an extra-parliamentary body within Quebec and a parliamentary and an extra-parliamentary body nationally. Specifically, within Quebec, there were the Allaire Committee (see Allaire Report) and the Belanger-Campeau Committee; and nationally, there were the Beaudoin-Edwards Committee and the Spicer Commission. These studies led to various reports including the federal document Shaping Canada’s Future Together. Subsequently, the federal government convened a series of five national conferences to discuss various aspects of this document. This, in turn, led to a federal report entitled A Renewed Canada. All of the foregoing culminated in negotiations among the federal government, the provincial governments (including Quebec in the latter stages of negotiations), the territorial governments and representatives from the Assembly of First Nations, the Native Council of Canada, the Inuit Tapirisat of Canada and the Métis National Council. These negotiations resulted in what is now referred to as the ‘Charlottetown Accord’.
The Accord dealt with a number of constitutional issues. For example, regarding the division of legislative powers (see division of 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 (see centralization) features in the Constitution are the federal power of reservation and disallowance and the declaratory power in section 92(10)(c). The Accord would have abolished the former and allowed the latter only subject 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, through transfer payments and other fiscal devices, finances all or part of programs (such as medicare, social services, advanced education, etc.) that otherwise would fall within provincial legislative authority. In doing so, 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 (R.S.C. 1985, c. C-6). Therefore, any province that has such a program would also have guarantees of federal compensation, provided the provincial programs conform to national standards.
The Accord also provided for enhancement of Canada’s social union 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 the 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 (see Agreement on Internal Trade (AIT)).
The Accord addressed the issue of Aboriginal self-government but provided for a hiatus of three 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 that set out the values that define the nature of the Canadian character. One of those values was the recognition that Quebec is a distinct society within Canada. Other values included egalitarianism, diversity and other qualities of Canadian society. This provision, like the present section 27 of the Canadian Charter of Rights and Freedoms relating to multiculturalism, is an interpretative section, directing the courts to construe the Constitution having 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 its 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 Triple E Senate – i.e. equal, elected and efficient. 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 such that 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 Quebec 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. It also 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, three provinces had referendum legislation: British Columbia, Alberta and Quebec. As it turned out, British Columbia and Alberta decided to participate in the federal referendum, with the result that two 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?”
Nationally, fifty-four percent 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. It would seem that after the failure of the Meech Lake Accord, Canadians again could not reach a national consensus during the Charlottetown debate and referenda.