“A Constitutional Conference … Shall Be Convened …”: Living with Constitutional Promises

John D. Whyte taught law at Queen’s University in Kingston from 1969 to 1996. He wrote this essay just after the First Ministers’ Meeting of June 1996.

Section 49 of the Constitution Act, 1982 says: “A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.” The Part is Part V, the procedure for amending the Constitution, and the deadline was 17 April 1997. At the June 1996 meeting the subject took only a few minutes. Premier Lucien Bouchard of Quebec left as it came up, and Prime Minister Jean Chrétien then told the press that the obligation had been met.

Whyte argues that no review took place. He traces section 49 to the 1981 deal between the eight provinces that opposed unilateral patriation: the fifteen-year review was a comfort to those who doubted the new amending formula. He finds that neither the August 1992 meetings that produced the Charlottetown Accord nor the 1996 meeting reviewed Part V as a whole.

Before 1996: Meech Lake and Charlottetown

Patriation, 1981–1982. In November 1981 the federal government and nine provinces agreed to bring the Constitution home from Britain with a Charter of Rights and Freedoms and the amending formula of Part V. Quebec, under René Lévesque, refused to sign. The Constitution Act, 1982 came into force on 17 April 1982 without Quebec’s consent.

The Meech Lake Accord, 1987–1990. Prime Minister Brian Mulroney set out to win Quebec’s agreement. On 30 April 1987, at Meech Lake in the Gatineau Hills, he and the ten premiers accepted Premier Robert Bourassa’s five conditions:

• recognition of Quebec as a distinct society;
• a Quebec veto over constitutional amendments, by adding to the matters that need every province’s consent;
• compensation for a province that opts out of a new national shared-cost program;
• a provincial role in appointing Supreme Court judges, three of them from Quebec;
• more provincial power over immigration.

The text was signed in Ottawa on 3 June 1987. It needed the approval of Parliament and all ten legislatures by 23 June 1990, three years after Quebec’s National Assembly approved it first. New governments in New Brunswick, Manitoba and Newfoundland objected to it, and Newfoundland withdrew its approval in April 1990. In June 1990 Elijah Harper, a Cree member of the Manitoba legislature, withheld the consent the legislature needed to vote on it in time, because it ignored Aboriginal peoples. Newfoundland’s House of Assembly adjourned without a vote. The accord died on 23 June 1990.

The Charlottetown Accord, 1992. After Meech, Quebec set a referendum for 1992, and Ottawa began a wider round of talks. For the first time they included the territories and the national Aboriginal organizations. On 28 August 1992 in Charlottetown, the Prime Minister, the ten premiers, the two territorial leaders and four Aboriginal leaders agreed to a package:

• a “Canada clause” setting out the country’s values, including Quebec as a distinct society;
• an elected Senate with six senators from each province;
• a guarantee that Quebec would keep at least a quarter of the seats in the House of Commons;
• recognition of the inherent right of Aboriginal self-government;
• changes to Part V, which Whyte examines: compensation for opting out of amendments, a longer list of matters needing unanimous consent, new rules for creating provinces, and Aboriginal consent to amendments that refer to Aboriginal peoples.

On 26 October 1992 it was put to a referendum and lost, 54 per cent to 46 per cent nationally. Quebec, the four western provinces, Nova Scotia and the Yukon voted No.

After Charlottetown. On 30 October 1995 Quebec voted against sovereignty by about 50.6 per cent to 49.4 per cent. Ottawa then acted below the level of the Constitution: the House of Commons passed a resolution recognizing Quebec as a distinct society, and Parliament passed the Constitutional Amendments Act of 1996. The Act bars a federal minister from proposing most amendments without the consent of Ontario, Quebec and British Columbia, and of at least two Atlantic provinces and two Prairie provinces with half their region’s population. This was the setting for the June 1996 meeting.

The essay was first published as: “A Constitutional Conference … Shall Be Convened …”: Living with Constitutional Promises, John D. Whyte, Constitutional Forum constitutionnel 8:1 (1996). It is shared here under the journal’s Creative Commons licence (CC BY-NC-ND 3.0), unchanged.