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Eight:
Pressure Points
The
mood across Outer Canada
during the summer of 1990
was anything but supportive
of our present model of
top-down democracy in Ottawa.
We agreed with Inner Canadians
on many issues, ranging
from wanting lower interest
rates to the need for stronger
national leadership, but,
unlike these fellow citizens,
we urgently require changes
to make our national government
representative of all Canadians.
Such changes relate to various
fields: grants to cultural
agencies, constitutional
commitments, the handling
of the taxation system.
In each of them the pressure
on national unity has increased:
thus these issues deserve
a closer look from the standpoint
of Outer Canadians.
Culture
and Communications
Cultural
disaffection among Outer
Canadians is a growing problem
with national unity implications.
The Canadian Broadcasting
Corporation, a national
crown corporation whose
television and radio services
are used by an estimated
twelve million Canadians
daily, is a major culprit.
It should be a major unifying
vehicle providing a broad
cultural highway of national
self-expression. It should
allow Canadians everywhere
to share a cultural heritage
that reflects our full national
diversity.
Neither
the English nor the French
television network of the
CBC currently provides an
adequate contribution with
respect to regional and
cross-cultural communications.
This vein was first documented
officially during 1977 when
the Boyle Commission of
Inquiry concluded that virtually
all regular network CBC
English television series
were produced in Toronto
with Ottawa providing some
political programs. As for
the rest of the country,
said Harry Boyle, then chairman
of the Canadian Radio and
Television Commission (CRTC),
the Prairies and Atlantic
Canada provided virtually
nothing, although British
Columbia contributed more
significantly (e.g., the
recently terminated Beachcombers).
The Commission concluded
glumly: "The regions of
English Canada, from sea
to sea, exist chiefly during
the summer vacation."
In
the case of the French language
Radio-Canada, based in Montréal,
the presentation of the
regions of Canada outside
Québec was so extremely
limited that the two solitudes
were encouraged in the structures
of the corporation. A content
analysis of major national
television and radio newscasts
of the corporations done
for the Boyle Commission
in mid-1977 indicated the
extent of the problem. The
estimate of the common ground
in the sampled English and
French media was approximately
15 percent. More than half
of the time used by Radio-Canada
on Canadian news focused
on Québec events, whereas
on English news only 17
percent of the air time
was devoted to Québec. The
enforced separation of the
two solitudes continues
to be virtually total. For
example, the television
drama series Lance et
Compte (He Shoots, He Scores--
Radio Canada 1986) was
extremely successful in Québec; its English audience
was minimal. Some say this
was because the English
version was censored, but
it certainly indicates important
cultural differences. The
1977 drama by Radio Canada,
Duplessis, was watched
by two million Québeckers,
a quarter of the population;
in English Canada, the series
attracted less than 5 per
cent. CBC’s television series,
The Nature of Things,
produced for twenty-seven
years and sold to 30 countries,
has never been shown in
French in Canada.
Both
the English and French CBC
television networks give
little attention to Outer
Canadians. A study for the
Boyle Commission revealed
that Radio Canada and CBC
devoted less than 1.3% of
their sampled news time
to British Columbia. To
the four Atlantic provinces,
Radio-Canada news allotted
no time and CBC English
television news devoted
3.2% of its time during
the period surveyed. The
Prairies received 13.6%
of English television news
time but only 2.8% of the
French television time.
The North got 13.6% of English
television but only 1.3%
of French television news
time.
Toronto,
Ottawa, Montréal and Québec
City were the sources of
73 percent of both the television
and radio news. Four of
the larger cities in Outer
Canada, Halifax, Winnipeg,
Edmonton and Vancouver,
could each muster just between
one and two percent of the
news items. All other communities
in Outer Canada presumably
failed to register at all
on what the CBC editors
thought was newsworthy during
a ten-day period in our
ongoing national story.
Understandably, Harry Boyle’s
1977 reporting letter to
Prime Minister Trudeau stated
that, "the CBC has thereby,
in the commission’s view,
failed in its very important
responsibility to ‘contribute
to the development of national
unity’" Both Outer and Inner
Canadians will have to assess
for themselves whether it’s
doing significantly better
today.
The
president of the CBC at
the time, Al Johnson, conceded
that the corporation had
failed to adequately reflect
English Canada and French
Canada to each other. I
am unaware of any independent
or content analysis since
1977 which demonstrates
substantive improvement
on the television news side.
It is my sense that things
have improved only very
little since the Boyle report
of 1977.
The
late-1989 study by the Fraser
Institute’s National Media
Archive still chided the
trend of our national media
for unbalanced regional
coverage. Based on an analysis
of six topics (free trade,
the federal election, labour,
health care, privatisation
and abortion) the study
revealed that news from
Ontario dominates media
reporting, with nearly two-thirds
of the CBC’s and a little
over half of the Globe
and Mail’s coverage
focusing on Ontario. The
Atlantic provinces and Québec
received minimal coverage
from both media: 1.4 per
cent and 9.7 per cent respectively.
Prairie provinces took 22
per cent of the Globe
and Mail’s coverage
and only 8 per cent of CBC
time. British Columbia did
better with 18 and 22 per
cent respectively. The North
hardly attracted any story
at all on the six issues
analysed -- 0.2 per cent.
A
spring 1990 study by the
same National Media Archive
revealed that 90 per cent
of the CBC stories on the
GST originated in Ontario.
The only other province
that attracted attention
was Alberta, where opposition
to the GST is the strongest
because of the absence of
a visible provincial sales
tax. Over half the coverage
on CBC and two-thirds on
CTV on the issue originated
from Ottawa and more than
one-third of the coverage
on CBC came from the Toronto
studio. The voice of Outer
Canada, the region most
adversely affected by the
GST, was virtually absent.
The
1989 coverage of the Meech
Lake accord by CBC was also
highly Toronto-centred with
almost 80 percent of all
statements coming out of
the Toronto studio. None
of the stories about Clyde
Wells or Newfoundland, according
to the National Media Archive,
were broadcast from Newfoundland,
and only 3 per cent of CTV’s
stories were.
On
the CBC English radio news
side, an internal corporation
analysis suggests an exemplary
record in reporting regularly
from many centres across
Canada. Radio news is clearly
much more portable than
television news, but even
so it appears to deserve
high marks as a vehicle
for having Canadians speak
to each other across often
vast distances. An independent
analysis of four major CBC
AM radio programs, As
It Happens, Sunday Morning,
Morningside and The
House, performed in
1985 by Professor Barry
Cooper of Calgary, concluded
that 78 per cent of the
sampled items originated
in Central Canada. This
suggests that the current
affairs section of CBC radio
has yet to catch up with
the Boyle Commission’s recommendations.
A
large part of Atlantic Canada’s
present difficulties are
the put-downs it receives
constantly from our national
media. As a national institution
concerned with national
unity, the CBC should make
an effort first to understand
the region better, including
its potential, and then
to minimize the number of
insults broadcast about
the region. Why, for example,
are CBC English television
stations in the region (as
elsewhere) only permitted
about an hour daily for
local news and current affairs
in contrast to its English
radio, which has seven or
eight hours daily in prime
time for local programs?
The
standard argument of CBC
English television against
the charge that it constantly
trivializes Atlantic Canada
in particular and Outer
Canada in general is that
television costs more than
radio. But Atlantic Canadians
pay taxes too, and a lot
more could be done if the
Canadians-talking-to-Canadians
part of the network’s mandate
was taken more seriously
by both its senior management
and federal cabinets. Why
should CBC staff in Toronto
be permitted to indulge
Inner Canadian prejudices
and in all likelihood their
limited understanding of
Atlantic Canada in choosing
virtually everything that
is shown on The National,
The Journal and almost
everything else appearing
on the English network?
Presumably the privately-owned
CTV and Global television
networks would improve their
overall treatment of the
region if our public network
provided better leadership.
Harry
Bruce’s excellent book about
Atlantic Canada, Down
Home, provides another
perspective on the CBC from
Canada’s east coast. In
the rnid-1960s, Jack McAndrew
was based in Halifax as
Chief of the Outside Broadcast
department for the Atlantic
region of the CBC. Increasingly
he resented, in Bruce’s
words, "the cultural imperialism
of his superiors in Toronto.
The Maritime stories they
wanted seemed always to
be clichés, features about
Anne of Green Gables, Highland
games, national parks, and
fishermen in slickers and
rubber boots. When he suggested
more original stories, CBC
headquarters in Toronto
insisted they were ‘not
representative of the region’.
. . . They wanted only the
most stereotyped stories
from down here. If you didn’t
have a seagull shittin’
on the lens, they just didn’t
want it." A man of real
principle, McAndrew later
turned down the best CBC
job in the Maritimes, that
of regional director, because
it might have appeared that
in accepting it he was endorsing
its policy of gutting regional
creative production. He
quit the CBC in Toronto
and with his family relocated
to Charlottetown.
McAndrew
complained that in the late
1970s under its former general
manager, Peter Herrndorf,
the English branch of the
CBC sacrificed music, drama
and variety programming
in favour of becoming "a
purveyor of information":
"I say you find the soul
of a nation in its artists,
not in panel discussions
on freight rates and free
trade," he argued. Also
the Boyk Commission noticed
that the rare television
adaptations of English novels
about Canadian life tended
to be "completely reshaped
from within the CBC."
The
Caplan-Sauvageau Task Force
on Broadcasting Policy,
after hearings across Canada,
noted in 1986, "a widespread
feeling that our broadcasting
system, like so many other
Canadian institutions, reflects
reality largely as it is
understood in Toronto and Montréal. Similarly, there
is strong belief it also
reflects the mainstream
elite of central Canada.
As a result, Westerners,
Easterners, Northerners,
women, natives, ethnic groups
and minority groups in general
feel that Canadian broadcasting
neither belongs to them
nor reflects them." Participants
in a follow-up series of
forums on broadcast policy,
sponsored by the Canadian
Association for Adult Education,
reinforced this same message
about helping, not hindering,
the regions to develop voices
on the national scene. Fil
Fraser of Edmonton, a former
CBC broadcaster, described
CBC regions today as "a
sham. The regions are not
producing programming because
they have no access to the
network schedule and they
don’t have any money to
produce with."
Yet
a third volley from Outer
Canadians was presented
to the House of Commons
Committee on Communications
and Culture during 1987
in St. John’s. Robert Paterson
of the Canadian Union of
Public Employees, objecting
strongly to a recommendation
of the Caplan-Sauvageau
Task Force that all CBC
television production in
Atlantic Canada be done
henceforth in Halifax, pointed
out that the proposed regional
centralization "cuts some
regions Out of the national
dialogue Newfoundland and
Labrador, along with the
other regions of Canada,
need to preserve their ability
to present themselves to
other Canadians and tell
them what they think."
In
Halifax, David Colville,
on behalf of the Nova Scotia
government, lamented that
"the problems of gaining
either regional or national
network time and money must
be resolved in CBC head
office in Toronto. The standing
joke here is the $500
cup of coffee." He looked
forward fondly to a day
when regional and national
programming would be decided
together. In Halifax, Alexa
McDonough, leader of the
Nova Scotia New Democratic
Party, spoke of her province’s
"wealth of real, long-established
cultures. Nova Scotians
do not want a broadcasting
policy that enables us to
be more like Torontonians,
no disrespect intended to
Torontonians. We want a
broadcasting policy that
helps our unique Nova Scotian
character to grow and flourish
on our terms, as well as
maintaining healthy ties
with our fellow Canadians."
In
Moncton, New Brunswick,
Liane Roy of the Acadian
Society made the point that
the Radio Canada national
news received in New Brunswick
"often concerns Montréal
and does not reflect the
situation in New Brunswick."
Claude Thériault, president
of the Canadian Artists’
Representation, made essentially
the same point to the same
hearing: "the programs produced
by la Maison de Radio-Canada
in Montréal do not reflect
the reality of the French
language community throughout
Canada." Going on about
his problems in obtaining
more regional programming,
he complained,". . . every
time we try, we are told
that programming is the
responsibility of headquarters.
Headquarters is either in Montréal, in terms of decision-making,
or in Toronto. And in both
cases what you get is a
reflection of those provinces.
You do not get a reflection
of the Canadian situation."
In
Northwestern Ontario, David
Wright told the Communications
Committee that his region
consists of over 100 counties
and is the size of France
but must obtain its local
TV news from CBC Winnipeg.
"The alienating affect of
this is hard to overestimate
until you live here and
realize your community is
never mentioned on any national
network and no sporting
event in your area is ever
covered by a local reporter.
... Our area is, by default,
portrayed as an accident-prone
‘empty quarter’ rather than
in its true colours as a
fascinating and diverse
territory... Only a disaster
or a federal or provincial
election will draw a TV
crew."
For
years, the CBC has not troubled
itself much with discharging
its legislated mandate to
be a cultural link between
our diverse cultures and
with regions. A regional
consensus appears to exist
across the country that
our private television broadcasters
are even worse.
The
proposed amendments to the
Broadcast Act as specified
in Bill C-40, now at the
report stage in the House
of Commons, might result
in the phrase presently
in the CBC’s mandate that
it "contribute to the development
of national unity" being
removed in the new act.
Replacing it is the requirement
that the CBC "contribute
to shared national consciousness
and identity." In view of
the reality that the CBC
in its own interpretation
of the unity mandate has
quite often been dangerously
close to becoming a voice
for the government of the
day, and perhaps never more
so than in its coverage
of the first ministers’
meeting in June, 1990, 1
believe that relieving CBC
of its national unity mandate
in the area of news reporting
should result in fair, unbiased
and accurate journalism.
However, in other areas
of broadcasting such as
public affairs, entertainment,
special events, sports,
etc., the CBC should continue
to remain a vehicle of Canadian
unity by reflecting regions
of the country and by explaining
Canadians from urban and
remote communities to one
another.
The
performing arts grants by
the Canada Council for support
to the arts go disproportionately
to Inner Canadians. The
grant figures over a period
of years indicate that cultural
groups in the Toronto region
and in Montréal get more
than half of the Council’s
grants to metropolitan areas.
Spokespersons for the Council
insist that regional fairness
is not part of this mandate.
It is self-evident that
Toronto and Montréal have
both more industrial and
corporate patrons of the
arts and larger populations
to fill theatre seats.
The
experience of the Canada
Council’s exploration grants
programs in recent years
may be representative. The
program was established
to provide federal support
for projects in fields such
as theatre, film, writing,
music, dance and other visual
arts. The regional breakdown
of the contracts seems reasonably
fair on a population basis,
but again, bearing in mind
the economic state of the
various provinces, the Council
should direct more of its
grants to Outer Canadians
and fewer to the Toronto-Ottawa-Montréal
based artists. Generally
speaking, Outer Canadian
artists need more help,
whereas some of their counterparts
in the favoured cities do
not. Ottawa’s excellent
Little Theatre, for example,
has operated successfully
for many years without a
nickel of federal, provincial
or municipal money. It is
now almost impossible to
obtain a ticket to its plays
shown during the winter
season.
The
federal government spent
more than two-thirds of
its 1987-88 expenditures
on culture in Ontario and
Québec; the Atlantic provinces,
having about 9 per cent
of our population, received
a mere 6.3 per cent of the
money and the Western provinces
and the North, having approximately
30 per cent of the population,
received 15.4 per cent.
Telefilm,
the national film and television
production agency in Montréal,
has a strong Central Canadian
tilt. When, during a Commons
Communications and Culture
committee hearing in the
summer of 1989, I confronted
its executive director,
Pierre DesRoches, with the
fact that most of the movie
and television projects
it had supported in recent
years had been in the Toronto-Ottawa-Montréal
triangle, he replied that
regional considerations
are not a factor in allocating
funds. One of the problems
with Telefilm is that its
notion of Canada appears
to stop at the limits of
Toronto and Montréal.
Newspapers
and magazines are influential
cultural forces. They are
read by millions of Canadians
and inform them on a wide
range of topics, from professional
sports to economics. Public
opinion is at least partly
fashioned by the print media.
A survey of national reader
habits done by Statistics
Canada during 1978 found
that 62 per cent of those
surveyed about what they
read in newspapers said
they "read usually" local
and regional news. Another
18 per cent said they read
such news "sometimes." A
study done for the 1981
Kent Royal Commission on
newspapers found that more
than two-thirds of readers
said they were very interested
in local and regional news.
Such information should
accurately and fairly reflect
the communities across the
country, including their
full range of opinion, attitudes
and perceptions on issues
of community concerns.
At
the turn of the century,
114 daily newspapers were
published across Canada.
Eighteen cities each had
more than two daily papers.
A further seventeen communities
published two daily papers.
By the start of World War
I, there were 138 dailies
and 138 publishers. Today,
there are 110 dailies and
only seven Canadian cities
have two or more daily papers
in the same language and
under different ownership.
Competition is healthy in
only four cities of Outer
Canada: Edmonton, Calgary,
Winnipeg and Québec City.
As a rule the dailies in
Outer Canada are owned and
managed by Inner Canadians.
In
Western Canada, a number
of historically proud regional
voices have been humbled
in recent years, including
the Vancouver Sun, Victoria
Daily Colonist, and
Victoria Times. The Winnipeg
Tribune was closed.
Today, as Vancouver’s George
Woodcock notes, "an independent
press has ceased to exist
beyond the Rockies. Every
word printed every morning
and afternoon in British
Columbia appears on sufferance
of powerful combines whose
headquarters are in Central
Canada or even farther away."
In Alberta, the Toronto-based
Southam and Sun publishing
companies own the competing
dailies in both Edmonton
and Calgary. In Saskatchewan,
the Armadale Corporation
owned by the Toronto-based
Sifton family owns the only
daily newspapers published
in Regina (The Leader
Post) and Saskatoon
(The Star Phoenix). In
Manitoba, there appears
to be a strong consensus
among both readers and journalists
that the 1980 passage of
the Winnipeg Free Press
into the hands of Toronto’s
Thompson chain weakened
its traditional position
as an independent and strong
Prairie voice, at least
outside its editorial pages.
Three large companies dominate
90 per cent of the market
in Québec: Pierre Pladeau’s Quebecor, Paul Desmarais’s
Gesca, and Jacques Francoeur’s UniMédia. In the overall
English-language market
across Canada, the Southam
and Thompson chains control
59 per cent of the circulation
between them and the Irvings
in New Brunswick control
another 15 per cent.
The
recent purchase by Ottawa’s
National Gallery of "Voice
of Fire" by the American
artist, Barnett Newman,
generated much public outcry
over the $1.8 million spent
on one addition to the Gallery’s
collection. Cultural institutions
in Outer Canada already
envy the $3 million yearly
budget of the National Gallery.
Many Canadian artists from
different parts of the country,
moreover, are seriously
under-represented in the
Gallery’s collection. The
"Voice of Fire" incident,
among other things, has
reinforced the view that
national cultural agencies
financed by all the taxpayers
respond mostly to the tastes
of a small elite in Inner
Canada.
Meech
Lake Mayhem
The
Meech Lake accord was widely
seen in the outer eight
provinces as an accommodation
of political and business
elites in Inner Canada.
Few Outer Canadians were
surprised that the three
reluctant assemblies were
all in peripheral provinces.
When Elijah Harper, an Indian
member of the Manitoba legislature,
deftly used the rules to
kill the accord, Outer Canadians
were generally very supportive.
Clyde Wells of Newfoundland
has been the real scourge
of the Meech Lake defenders.
The Prime Minister denounced
him when the Newfoundland
legislature rescinded its
earlier accord approval
and when he refused to hold
a vote after Harper stopped
it in the Manitoba legislature.
The
road to these incidents
in the Manitoba and Newfoundland
legislatures began with
the 1980 Québec referendum
on sovereignty-association,
which was lost by the Parti
Québécois by approximately
40 per cent to 60 per cent.
During the emotional campaign
that preceded the referendum,
Prime Minister Pierre Trudeau
promised that a "no" victory
would bring renewed federalism.
Many Quebeckers concluded
he had in mind the more
decentralized model advocated
by then Québec Liberal leader
Claude Ryan. Trudeau never
went out of his way to correct
this impression. Real bitterness
grew in the province when
it turned out during the
constitutional wars of 1980
and 1981 that this was not
his concept at all.
Following
months of terribly divisive
wrangling, all the first
ministers except René Levesque
signed a compromise constitutional
package containing a popular
Charter of Rights that was
proclaimed by the Queen
in Ottawa on April 1, 1982.
No one had any doubt that
the provisions of both the
old and the new constitution
applied as much to Québec
as to any other part of
Canada. René Levesque himself
recognized this by invoking
the notwithstanding clause
of the 1982 Constitution
Act to declare that all
Québec statutes were to
be expressly excluded from
the federal Charter of Rights.
In
late 1985, when the Québec
Liberals defeated the Parti Québécois, the resurrected
premier, Robert Bourassa,
put forward five conditions
for his government to sign
the 1982 Constitution: recognition
of the province as a distinct
society; a veto for Québec
on constitutional amendments;
a larger role for the province
in immigration; a provincial
role in appointments to
the Supreme Court of Canada;
and limitations on federal
spending power. At the time,
these principles offended
few Canadians, including
the premiers of the day.
Presumably, most believed
that no one’s rights anywhere
would suffer by respecting
them.
During
the next ten months, Brain Mulroney, who had been Canada’s
prime minister since September,
1984, and Québec’s premier
Robert Bourassa lobbied
the other premiers. Following
a 19-hour bargaining session
in an elegant cottage beside
Meech Lake in Gatineau Park,
and to the astonishment
of many, all eleven signed
an agreement on April 30,
1987. The accord achieved
the very important goal
of bringing Québec amicably
to the constitutional table.
However, when the fine print
was later examined, nothing
in recent Canadian history,
including the 1980-82 patriation
of the Constitution and
the Canada-U.S. free trade
agreement, revealed deeper
differences among Canadians.
Both
major Québec political parties
-- the Liberals and the
Parti Québécois -- and probably
a majority of French-speaking
Quebeckers had rejected
Pierre Trudeau’s 1982 Constitution,
a fact that was of grave
concern to anyone who sees
Canada as essentially a
family. Nor can anyone minimize
the potential appeal of
nationalist voices in Québec
now the Meech Lake accord
has failed. The August 13,
1990 win of the Bloc Québécois
candidate Gilles Duceppe
in the East Montréal by-election
with 68 per cent of the
votes is a clear indication
of the mood in a post-Meech Québec. Unfortunately, the
Quebeckers speaking up then
and now for the province
as a continuing part of
Canada were neither as numerous
nor as articulate as Canadians
generally expected. The
Parti Québécois, which won
approximately four in ten
votes during the 1989 provincial
election with an openly
separatist platform, clearly
wanted it to fail. Robert
Bourassa’s comments about
the need for a new government
"superstructure" if the
Meech Lake accord expired
and statements afterwards
about the need for full
political sovereignty disturbed
many non-Québeckers. Equally
troubling were various opinion
polls indicating that a
majority of residents of
the province judged that
failure of the accord to
win acceptance would significantly
increase the likelihood
of independence for Québec.
The prime minister of Canada,
moreover, strongly reinforced
the "either-or" view, presumably
as part of his win-at-any-cost
strategy to obtain support
from all ten provincial
legislatures before June
23, 1990.
Arrayed
against these factors were
major defects in both the
process and substance of
the accord. Eleven first
ministers reached an agreement
in secret meetings. They
were able to ram their private
deal through their legislatures
untouched later on, relying
on what is probably the
most extreme party discipline
in the democratic world.
How could they presume to
exercise exclusive control
over constitution-making?
Why was there no real participation
of the ordinary citizen
in this process through
the convening of a constitutional
assembly or some other means?
Why were Canadians not even
afforded the opportunity
to approve or reject what
amounted to a new constitution
in a subsequent national
referendum? One of the original
Meech Lake group, Richard
Hatfield of New Brunswick,
had earlier rejected any
notion of allowing Canadians
to express themselves on
constitutional issues: "I
am opposed to a referendum
at any time for any purpose.
Any referendum is an attack
on our superior system and
should never be encouraged."
It appears that Hatfield
was not in touch with his
province on this and other
matters. In his first rendezvous
with voters after his participation
at Meech Lake, they elected
only Liberals, led by Frank
McKenna, to the New Brunswick
Assembly.
Examining
the Meech Lake accord during
the summer of 1987, the
House of Commons-Senate
Committee conceded that
its public hearings were
little more than a charade.
It noted in its report that,
in future, both "legislators
and the public must be encouraged
to participate in the process
of Constitutional change
before and not after First
Ministers meet to make decisions."
Outer and Inner Canadians
alike agreed it was unacceptable
democratic and constitutional
practice for provincial
premiers to arrogate to
themselves alone the right
to remake the constitution.
Constitution-making
Elsewhere
Other
democracies have updated
their constitution with
full democratic legitimacy.
The United States did it
two centuries ago after
winning independence from
Britain. Most of the American
states were then behaving
like independent republics,
with seven of the thirteen
issuing their own currencies
and showing mostly indifference
to the fate of the larger
union. A number of national
leaders in the War of Independence
responded to a growing paralysis
by meeting during 1787 in
convention at Philadelphia
to devise an improved system
of government.
Fifty-five
delegates from all but one
of the American states refashioned
the American constitution,
albeit behind closed doors,
in meetings which lasted
four months. At the end,
thirty-nine individuals
signed the document, a safe
majority. It included George
Washington, who said it
was about as good as could
be expected and could be
corrected later by amendments.
Federal and constitutional
laws were to override all
conflicting state ones.
No longer would the union
be "a firm league of friendship"
among the states. A new
national government was
to be established by the
American people as a whole.
Each state, large or small,
got two senators with six-year
terms as all states were
nominally equal. The voice
of the people in the House
of Representatives, based
on population, would be
heard frequently through
biennial elections. Both
chambers were equal on most
legislative matters, although
initially only the House
could originate tax measures.
A
system of checks and balances,
so absent in Canada’s national
government, was established
by placing each of the executive,
legislative and judicial
branches on a separate basis
of authority. Voters were
the ultimate source of power,
but the delegates wished
to minimize the risk of
one political party capturing
the entire government, presidency,
House of Representatives,
Senate and federal judges,
in a single election. The
House and Senate were to
balance each other in legislation
and Congress and the President
were to check each other.
Members of the federal judiciary,
having the final word on
what the new constitution
meant, were appointed for
life to provide them with
the necessary independence.
Both they and the president,
however, could be ousted
for cause by the Congress
through an impeachment process.
For
constitutional amendments,
the Americans dropped the
rule of the earlier articles
of Confederation which required
the consent of every state.
Instead, amendments could
be proposed by a two-thirds
vote in each house or upon
application from the legislatures
of two-thirds of the states
for a constitutional convention.
Amendments proposed by either
method would go into effect
when ratified by the legislatures
or conventions in three-fourths
of the states.
The
constitutional proposals
were sent by the Philadelphia
delegates to Congress for
approval with two recommendations:
first, it should be returned
to each state for approval
at special conventions to
be chosen by state voters,
and, second, it should be
ratified by nine states
among the thirteen before
going into effect, leaving
dissenting states, if any,
without any national roof.
A furious national debate
followed, but conventions
were elected in all states
to assess it. By mid 1788,
nine states had ratified.
By 1790, the rest had come
on board. The victors in
seven of the states had
agreed to enact a bill of
rights through amendments
to the constitution, which
was done the following year.
The American people early
on pointed the way to constitutional
change on an essentially
democratic model.
Following
World War II, West Germany
provided a modern example
of democratic constitutional
renewal that might have
considerable appeal to Canadians
for a post-Meech Lake reform
of our constitution. Like
Canada today, the regions
of Germany which became
the Federal German Republic
faced a major crisis in
1948 when the Soviet Union
withdrew from the four-nation
occupational government.
A constituent assembly was
convened with sixty-five
delegates being chosen on
a population basis from
each state. In fact, the
delegates were chosen by
the various state legislatures
and were mostly members
of them. Mirroring closely
the strength of the various
political parties at the
time, delegates met in a
series of committees for
five months before producing
a new constitution.
Subsequently,
the assemblies of all states
except Bavaria approved
the proposals and the first
national elections were
called under its provisions
in late 1949. On the promise
that the Basic Law was a
creation of representatives
of the entire population,
the refusal of the Bavarian
parliament to approve it
was considered unfortunate
but legally insignificant.
Bavarians in fact have participated
as fully as any residents
in the Federal Republic
since its inception.
"Distinct
Society"
The
text of the Meech Lake accord
eventually attracted even
greater criticism than its
elitist and secretive process.
Naming Québec as a distinct
society in an interpretation
clause rather than in the
preamble or in a substantive
provision created uncertainty
about its scope. The province
is clearly distinctive,
linguistically, culturally
and demographically, but
many of us worry that this
provision, as worded and
placed in the accord, would
have allowed the language
and other rights of non-French
speaking Quebeckers to be
adversely affected by future
Québec legislation designed
to enhance this distinctiveness.
Multicultural,
women’s and aboriginal communities
were sceptical about the
protection, if any, afforded
them under the Meech Lake
agreement because their
rights to equality were
not included, as well, even
within the interpretation
section. Women’s organizations
contended that the accord
placed their Charter of
Rights-based equality rights
in serious jeopardy. Ethno-cultural
communities worried that
the "linguistic duality
-- distinct society" provisions
might be used to weaken
the present constitutional
position of the eight to
nine million Canadians having
their origins in nations
other than Britain or France.
Aboriginal leaders resented
that their excellent claims
to distinctiveness and constitutionally-recognized
self-government were not
even mentioned in the accord,
itself completed only a
few weeks after the Aboriginal-First
Ministers Constitutional
Conference concluded with
nothing substantive achieved.
The
immigration provision was
a particular sore point
in some of the outer eight
provinces. Why should the
constitution of Canada provide
for immigration agreements
between Ottawa and provinces
which appear likely, on
the basis of the current
Canada-Québec agreement,
to guarantee that Québec
would receive one quarter
of all immigrants coming
to Canada each year? How
could a better population
balance among the provinces
ever be reached without
increased immigration to
the outer ones? The federal-provincial
agreement already in effect
on immigration appeared
to explicitly prevent this
from happening.
In
the spring of 1990, Angus
Reid-Southam News conducted
an opinion survey which
found that opposition in
Outer Canada to enacting
the Meech Lake accord in
its original form was 73
per cent in British Columbia,
64 percent in Alberta, 74
per cent in Saskatchewan
and Manitoba and 65 per
cent in Atlantic Canada.
Specific objections in Outer
Canada to the Meech Lake
accord came from aboriginal
peoples, women, linguistic
minorities, most ethno-cultural
groups, northerners, and
many of those favouring
a Triple-E Senate.
In
Manitoba, Howard Pawley,
who had signed the accord,
was replaced as premier
by Gary Filmon with a minority
Conservative government,
before it could be ratified
by the legislature. Following
the passage of Québec’s
law banning English on outside
commercial signs, Filmon
angrily withdrew the accord
from his assembly. Afterwards,
he, Manitoba Liberal leader
Sharon Carstairs and NDP
leader Gary Doer, maintained
one of the tightest all-party
alliances in Canadian history
until the recent Manitoba
election was called. Until
the dying moments of the
first ministers’ June meeting
in Ottawa, they held firmly
that the agreement could
not be passed without prior
substantive amendments.
Manitoba public opinion
remained so strong in support
of this all-party position
that whichever of the three
parties broke from the consensus
seemed likely to lose most
of its seats in an ensuing
provincial election.
In
Saskatchewan, Grant Devine’s
Conservative government
pushed the accord through
quickly with little legislative
opposition or public debate.
The Social Credit majority
in Victoria also passed
it with minimal scrutiny.
Nonetheless, one clear lesson
from the regional debate
was that Westerners were
no longer homogeneous on
constitutional issues. Alberta
Premier Don Getty managed
to obtain passage in the
Alberta legislature without
public hearings, but ones
held by the New Democrats
heard 150 groups and individual
presentations which were
sharply critical.
One
of the submissions came
from Eugene Forsey, Newfoundland-born
and probably Canada’s leading
constitutional scholar,
who excoriated the proposal.
He was confident that the
effect of the unanimity
feature of Meech meant that
every province would have
an absolute veto over most
future proposals involving
constitutional amendments.
He saw the implications
for the territories as a
"gratuitous buffet in the
face for the Yukon and the
Northwest Territories, and
delivered by a body in which
they were not represented
and which, as far as I know,
gave them no chance to be
heard." For aboriginals,
Forsey expressed regret
that at the very least the
list of matters to be discussed
at First Ministers’ Conferences
should have included aboriginal
rights. On the distinct
society, he argued that
its presence in the interpretation
section of the accord meant
that the courts were being
directed to interpret the
constitution in a manner
consistent with the principle
of Québec being a distinct
society. Would the position
of English-speaking Québeckers
deteriorate if this occurred?
He also concluded that the
principle of language duality,
as worded and located in
the Meech Lake accord, would
amount to "sheer humbug"
for French-speaking Canadians
in the other nine provinces.
The clamour for changes
in the agreement soon mounted,
led in large measure by
the new Liberal premier
of Newfoundland, Clyde Wells.
First
Ministers’ Meeting in Ottawa
Many
Canadians noted the seven-day
first ministers’ meeting
in Ottawa and most were
offended by its secrecy.
Even the participants were
distressed enough to agree
to consider at the next
constitutional conference
using mandatory public hearings
before adopting future constitutional
amendments. What fools they
thought Canadians if they
believed anyone could now
believe such self-serving
nonsense. Their sudden reformation
was weak and tardy.
The
Prime Minister revealed
his personal agenda the
following week during a
Globe and Mail interview.
The entire first ministers’
exercise, he boasted, was
deliberately timed by him
to bring the impasse down
to eleventh-hour negotiations.
He had told his advisers
a month earlier when the
meeting would occur during
the first week of June.
"That’s the day we’re going
to roll the dice." He also
expressed no regrets --
"none whatsoever" -- about
the absence of public debate
on the constitutional negotiations,
contending that the private
talks followed the precedent
set by Canada’s founding
fathers. "This is the way
Confederation came about.
There was no public debate;
there was no great public
hearings. It became a kind
of tradition." This was,
of course, historical illiteracy.
There was intensive public
input and debate before
Confederation. The Confederation
Debates which records
the various proceedings
is a volume of 1,032 pages
and is known by anyone who
has ever looked seriously
at our history.
According
to Michel Gratton, Mulroney’s
former press secretary,
after the Globe and Mail
interview was printed
the prime minister telephoned
Clyde Wells to persuade
him that his schedule was
simply too full to hold
the first ministers’ meeting
at any other time. Senator
Lowell Murray’s travels
across the country to meet
with all ten premiers in
search of sufficient consensus
to call a meeting was a
farce. The prime minister
knew he’d be convening a
conference even though he
had protested repeatedly
there would be no meeting
if it was doomed to failure.
In short, outright deception
is a perfectly acceptable
practice in Brian Mulroney’s
Ottawa. The meeting, when
held, was almost identical
in form to Montréal labour
negotiations held during
the 1960s.
First
Ministers’ Agreement
Substantively,
the first ministers’ doomed
agreement in June 1990 on
the Meech Lake accord was
essentially a worthless
bauble for all who had concerns
about features of the accord.
For
example, a federal-provincial-territorial
commission, appointed by
the three levels of government,
was to hold hearings on
Senate reform and make recommendations
to a First Ministers’ Conference
to be held by the end of
1990. Given that there have
been eight or nine official
studies on Senate reform,
a further one was clearly
unnecessary, but at least
this one was to report quickly.
If the Meech Lake accord
had passed, any substantive
Senate reform would have
required the unanimous agreement
of eleven legislatures,
a prospect unlikely, in
practice, to disturb the
status quo.
To
create new provinces out
of the Yukon and Northwest
Territories, the first ministers
agreed that future conferences
should address options for
their provincehood, including
the only reasonable one
(to Outer Canadians) that
they should become so exclusively
by a joint representation
of Commons and Senate. This
was useless because the
Meech Lake accord, if passed,
would have afforded a veto
to every provincial legislature
on giving the two territories
provincial status. The agreement
threw the territories only
two very small sops: discussion
on any issue that the prime
minister exclusively decides
affects them, and a non-binding
promise that once the Meech
Lake accord was ratified
the role of the two territories
in Senate and Supreme Court
of Canada appointments would
be a subject of future constitutional
amendments.
A
three-paragraph legal opinion
from six lawyers was attached
to the first ministers’
agreement, which the Prime
Minister and some of the
premiers claimed ensured
that the distinct society
clause would not be used
as a sword to reduce rights
within Québec. Most Canadians
are immediately skeptical
of anything said by lawyers
in three paragraphs. More
seriously, the best known
of the jurists, Peter Hogg,
was so identified with the
pro-side of the Meech Lake
debate that the legal objectivity
of the opinion was suspect
to many. Nor was the thrust
of the opinion as helpful
as Meech Lake defenders
might wish. For example,
it said that the protection
of the Charter is "not infringed
or denied" by the distinct
society clause, but then
added that it "may be considered,
in particular, in the application
of section I" (which says
that rights are "subject
only to such reasonable
limits prescribed by law
as can be demonstrably justified
in a free and democratic
society"). The opinion also
conceded that the clause
could be considered by courts
in determining whether a
Québec measure fits within
the legislative authority
of the province.
I
agree with John Whyte, dean
of the law school at Queen’s
University, that the opinion
was "confusing in intent,
substance and effect" and
that under the surface it
described a process by which
the rights of Canadians
living in Québec were probably
going to be diminished.
Like so much in the hurried
agreement, it was also legally
irrelevant. Instead of referring
the distinct society and
other controversial clauses
to the Supreme Court of
Canada for an opinion, as
could have done at any time
during a three-year period,
Brian Mulroney persuaded
most of the premiers to
attach a letter with little
legal weight. It was neither
signed by any of the premiers
nor adopted as sound by
them. No court can give
weight to a legal opinion
bearing only a very thin
veneer of government sanction
and neither confirmed by
legislative resolution nor
endorsed by government resolution.
Legal mayhem would otherwise
result. The lawyers’ letter
in essence constituted a
sordid little manoeuvre
to attempt to convince the
first ministers and Canadians
generally that the Charter
of Rights would apply in
all provinces to the same
degree.
Apart
from the constitutional
guarantee of equality the
agreement gives to both
official languages within
New Brunswick, linguistic
minorities in the other
nine provinces and territories
received nothing substantive.
Changing anything in the
important area of languages
would require either the
unanimous consent of all
premiers or a constitutional
amendment, which could be
vetoed by any legislature.
The
agreement promised that
at first ministers’ constitutional
conferences held every three
years, representatives of
aboriginal peoples would
be invited to participate
in the discussion on matters
of interest to them. An
amendment of the constitution,
presumably in relation to
the constitutional rights
of aboriginals, would be
sought from provincial and
federal legislators. The
overwhelming opposition
to the passage of the Meech
Lake accord by aboriginal
peoples across the country
was thus understandable.
They received nothing from
the agreement except a commitment
to discussions once every
three years.
The
agreement noted various
failed efforts over two
decades to draft a statement
of constitutional recognition,
a "Canada clause," and said
all drafts might be submitted
to a Special Committee of
the Commons. Following public
hearings, it would report
to the first ministers at
the end of 1990. Unfortunately
for Canadians interested
in substance, given that
the Meech Lake accord would
then have been the central
part of our constitution
with a unanimity rule, this
was nothing but more warm
air from our first ministers.
Many
who were familiar with the
practices in other federations
worried that the Meech Lake
accord’s requirement of
unanimity by all provincial
legislatures for constitutional
amendments would, in practice,
make them impossible. The
first ministers’ agreement
again bound no first minister
to anything except further
discussion at constitutional
conferences. In short, the
first ministers promised
Canadians "peace in our
time" in a way very reminiscent
of Neville Chamberlain’s
pledge to Britain after
the Munich agreement of
1938. The public participation
in the proc |
