(Continued from Part 8, previous blog post)
Another area in the Pearson accord with some controversy and was adopted by the Charlottetown accord was the social charter championed by Ontario NDP premier Bob Rae.
During the June 1992 constitutional negotiation when the “social charter” was merged with the “economic union” – dismantling of inter-provincial barriers to investment, trade and employment – into “social and economic union” in a proposed new section in the Constitution, columnist Don McGillivray complained that it was useless because it did not permit enforcement through the courts: 407
“By the end of the Joe Clark constitutional talks on June 11, the economic union idea had been merged with the “social charter” proposed by Ontario’s Bob Rae into something called “Canada’s social and economic union.”
This was supposed to have governments “working together to strengthen the Canadian economic union; the free movement of persons, goods services and capital; the goal of full employment.”
But the whole thing disappeared in a puff of green smoke with this little sentence: “The provision should not be justiciable.”
In other words, it would just be pretty constitutional phrases that couldn’t be enforced in the courts.”
But McGillivray missed several points in his complaint about the perceived futility of nonjusticiable “social and economic union”.
Firstly, the “social and economic union” section was laden with the language of “policy objectives”, i.e., principles for government policy and direct administration in this area – an approach preferred by the political left probably more than the political right; Bob Rae had called for an independent commission jointly appointed by the federal and provincial governments to monitor these matters, but the Pearson accord let the monitoring mechanism be determined by “a first ministers conference”. 408
Secondly, back in April when Rae was pleased with the negotiation’s ‘breakthrough’ on a social charter, the official announcement by constitutional affairs minister Joe Clark only referred to it as “the principles of a social and economic union in the new constitution”; 409 clearly, placing the social and the economic principles together had been the federal government’s intent and Rae accepted it.
And thirdly, from the start the federal New Democratic Party’s position on lobbying for a social charter, as outlined by party leader Audrey McLaughlin in early February 1992, gave up on it being a ‘charter of rights’ that would act as legal guidelines; at the time, Liberal deputy leader Sheila Copps already mocked that the Soviet Union had such a social charter and it had not worked: 410
“”If that’s the case, it wouldn’t be worth the paper it’s written on,” she said. “We must remember that Moscow had a social charter and it didn’t work. If it’s not appealable to the courts, you wonder if it’s worth the constitutional turmoil.””
Apparently, Bob Rae had not garnered united support from the left to make a social charter court-enforceable.
Rae’s vision of a social charter had been that of “social rights”, e.g., the right to medicare, that would be written into the Charter of Rights and Freedoms, but Joe Clark ruled out a court-enforceable charter on the ‘social rights’ and so NDP leader McLaughlin pushed to have them included as government principles instead, which in her view should include “full employment and fair working conditions, income security, universal health care, food, clothing, shelter, quality education; clean environment and a sustainable economy”; some of these objectives, such as the goal of full employment, were later transferred to under “economic union” when the social and economic union sections were merged. 411
But one then saw that in the course of the negotiations Joe Clark gradually allowed significant progress to be made over his reluctance, reservation, or initial opposition as the Mulroney government’s point man on constitutional reform – in areas such as official participation by aboriginal representatives and the Triple-E Senate; McLaughlin’s starting position meant the federal NDP wouldn’t bother to continue to exert pressure on the negotiations for justiciability of the social charter.
Bob Rae continued to push for some social benefits to be included in the current “mobility rights” section of the Charter of Rights and Freedoms, 412 which could be enforced by the courts.
However another key difference existed between McLaughlin’s position and Rae’s: McLaughlin wanted either the reformed Senate or an independent commission to oversee government performance on social-charter matters, whereas Rae proposed only an independent commission (possibly because McLaughlin had advocated Senate abolishment anyway and Ontario did not want a strong Senate). 413
This difference on Senate involvement or not somehow may have had to do with dropping of the ball by Rae at the constitutional negotiation table in June.
Press archives indicate that Rae continued past mid-May calling for the “social charter” principles, for monitoring by a commission, and for the improved “mobility rights”. 414 Then, there would be no more mention of improving “mobility rights” after the June negotiation, prior to which Rae had direct telephone consultations with Mulroney, Bourassa and other premiers as previously mentioned.
It was likely during the June negotiation when Bob Rae lost out on his effort to include some social benefits in the “mobility rights”, but this was also a critical period of negotiation when Senate power was being extensively studied; obviously Rae didn’t push for the reformed Senate to give special attention to the social-charter matters, whereas Alberta during this time made inroad on special Senate veto power over taxation related to natural resources, and diverted monitoring of “social and economic union” to the first ministers’ domain, where entrenching the first ministers conference in the Constitution was quickly agreed on. 415
The lack of court enforceability for “social and economic union” in the July 7 Pearson accord was likely carefully watched by some: on July 9 the Supreme Court of Canada handed down a unanimous ruling on a precedent-setting case of ordering the government to give benefits to people excluded from existing social programs in violation of the Charter of Rights and Freedoms. 416
As for the lack of a defined role by the reformed Senate to oversee “social and economic union”, recall that in a constitutional policy conference in early 1992 many participants had expressed the desire for the reformed Senate to become “a forum for Canadians who feel left out of the political process – women, aboriginal peoples, linguistic and ethnic minorities, labor groups and the poor”; 417 now there would be aboriginal Senate seats and Francophone Senate seats, with some special veto powers (originated from the idea of Newfoundland premier Clyde Wells dating back to the Meech Lake accord days, as previously discussed), but otherwise no special Senate power on other social matters – in the Pearson accord or later the Charlottetown accord.
Because “Social and economic union” covered national and interprovincial standardization of social and economic policy matters, province-wide elected federal senators could be well suited for its oversight; instead, the governments that already managed the policies and their implementation would also determine the monitoring mechanism in the future.
In spite of its shortcomings, the Pearson accord was an important milestone in the Canadian constitutional saga: as the first constitutional agreement – since the failed Meech Lake accord – between the federal government and all provinces except Quebec, all territories and official aboriginal representatives, it greatly surpassed the Meech Lake accord and opened new horizons; it would significantly extend the 1982 Constitution – which did not have Quebec’s consent either – albeit somewhat unconventionally in its enshrinement of specific rights for specific ethnic/cultural minorities; most importantly, the Pearson accord was only a blueprint to be revised and refined by an expected first ministers conference to reach a final accord.
But prime minister Brian Mulroney was not that happy that an accord was reached with him away at the G-7 summit in Munich, Germany, although it was not unexpected to him that the premiers were – in his words – going “to effect a compromise situation”; he was described as “taken aback”, especially that the accord included a Triple-E Senate (really a 2.5-E Senate as previously discussed) when he had made clear that it would not be his choice, be it Equal or Effective (as in real Senate power); according to a press story, former Australian Prime Minister Robert Hawke had convinced Mulroney that a powerful Senate could paralyze the House of Commons. 418
Joe Clark who personally liked a Triple-E Senate deserved credit for adjusting his official position at the negotiation table to let the Triple-E supporters win a “Triple-E compromise” – elected and equal with partial veto power – over the federal government’s reservations as persistently conveyed by Mulroney; Bob Rae’s willingness to convert to Triple-E and Clyde Wells’s strong stand on ‘pure’ Triple-E were also instrumental. 419
Immediately, Clark became a target of Mulroney’s side, with the first salvo fired by defence minister Marcel Masse at the cabinet table, who stated a Triple-E Senate would not be accepted in Quebec and must be changed to one with regional equality. 420
Masse was not only a senior cabinet minister from Quebec but (as previously discussed) someone who later at Mulroney’s request introduced Kim Campbell to Mulroney’s Quebec supporters and brought Mulroney’s old leadership campaign team to Campbell’s side; Campbell would also succeed Masse as defence minister prior to succeeding Mulroney as prime minister.
With Mulroney and many cabinet ministers keeping a distance to the Pearson accord, Clark had to personally defend the “Triple-E compromise” from criticisms by Masse, Quebec Tory Senator Claude Castonguay, Quebec Tory MPs Jean-Pierre Blackburn and Monique Tardif, and others, and from Mulroney’s open disagreement: 421
““The idea of an equal (Senate) was critical to the agreement,” Clark told reporters. “So I assume that that is a fundamental principle.”
But Mulroney, asked if the equal Senate deal is negotiable, said: “Nothing is settled until everything is settled. And how could you suggest that everything is settled on a change as fundamental as (Senate reform) unless all the parties agree to it?””
Quebec polls also showed more Quebecers opposing than supporting Triple-E Senate, with many caught off-guard by Ontario premier Bob Rae’s sudden conversion to it with Quebec premier Robert Bourassa absent from the negotiation, and by Rae’s insistence that Bourassa accept an equal Senate; more than half of the Quebecers polled were willing to vote ‘yes’ in a sovereignty referendum. 422
Some ardent Quebec nationalists, such as political scientist Leon Dion (whose relation to Stephane Dion has been mentioned in earlier Notes), demanded a new Parliament with equal representation of Quebecers and Canadians. 423
Clark became defensive about the provincially equal Senate and its power, arguing that the 70% veto on ordinary legislation would not very likely happen, and that Bourassa had asked to wait until July and now was an opportunity for “politicians of good will” to overcome exasperation. 424
Despite the heated rhetoric, new conditions set on July 15 by Bourassa for rejoining constitutional negotiation did not include changes to the Triple-E Senate, focusing only on “clarifications on the distinct-society clause, the veto over the creation of new provinces, and the immigration deal”, related to the Meech Lake accord which had permitted Quebec to not only “preserve” but “promote” its distinct French identity; Bourassa even mentioned “the crucial importance of a Triple-E Senate as part of a national compromise”. 425
To demonstrate constructiveness on his part, Clark raised the prospect of guaranteeing Senate Francophone representation from outside Quebec, and of incorporating a requirement of a majority of Quebec senators to defeat any Commons bill. 426 The first would be sensible given that French as an official language was not confined to Quebec, whereas the second was related to Clyde Wells’s idea of special Senate veto for Quebec (on French language and culture) that was instead granted to Francophone senators, but as described by Clark would be too broad, unrestricted.
Association canadienne-francaise de l’Alberta, which represented French Canadians in Alberta, sent Robert Bourassa a proposal resembling Clark’s on adjusting the Senate in favor of Quebec: it suggests at least one Francophone senator for every province outside Quebec, a double-majority (Anglophone senators and Francophone senators) approval requirement on all matters of language and culture, and a similar requirement involving majority Quebec senators on matters pertaining to that province. 427
Tory MPs from western Canada rallied around Clark on the Triple-E Senate; in his typical openness, B.C. caucus chair Stan Wilbee called for a national caucus meeting to discuss the constitutional deal; some of them however were also concerned that the proposals on aboriginal rights and native-self government with specifics undefined were too vague and too sweeping. 428
Even Reform party leader Preston Manning called the Triple-E compromise “a major step toward real Senate reform”, even though it was less than what his party had hoped for. 429
Cooler heads just might prevail.
But Mulroney would rather take things in a different direction, i.e., use the opportunity of public split over the Pearson accord to return to an unequal and powerless Senate as in his earlier plan for unilateral action had the accord not been reached. 430
On that Mulroney no doubt felt encouraged when Liberal leader Jean Chretien publicly called for scrapping the Pearson accord and holding a fist ministers’ conference to negotiate on the basis of the Beaudoin-Dobbie committee report, which had rejected an equal Senate in favor of a regionally equal one, and recommended Senate power to delay but not kill legislations; but Chretien’s request was rejected by Clark who reaffirmed the Pearson accord as the basis for negotiation with Quebec. 431
The next day, Clark told the media that Bourassa would likely go long with an equal Senate once he felt his conditions were met for Quebec to rejoin the negotiation, and Clark announced that Mulroney was close to inviting the premiers to an informal lunch meeting. 432
But on modifying Senate mechanism to favor Quebec, it was reported that while reiterating the prospect of guaranteeing Francophone seats from outside Quebec, Clark now mentioned – instead of special veto for Quebec senators as proposed days ago – extending Senate-Commons “joint sitting” to overrule Senate veto if the veto happened a second time after the Commons’ re-passing of the legislation – to favor the “superior numbers” of Commons seats held by Quebec and Ontario. 433
That was according to Julian Beltrame of The Ottawa Citizen. According to Susan Delacourt of The Globe and Mail, Clark mentioned either reintroduction of the bill by the Commons after a Senate veto, or for a 70% veto to end the bill a certain percentage of Quebec senators would be required (i.e., a special veto for Quebec senators was still on the table and “joint sitting” was not yet the only choice of veto resolution). 434
Delacourt also reported rumors that “whipped through” the financial communities in Toronto and New York, about Joe Clark discussing with Mulroney possible resignation from his constitutional affairs job if an agreement could not be reached; but Clark denied the rumors.
Was the inching closer of “joint sitting” as the only Senate-veto outcome on ordinary legislation demanded by Bourassa (who had been quoted as saying the Senate should be able to delay but not kill bills, and should be regionally equal rather than province-equal), 435 or was it the preference of Mulroney – like when “joint sitting” first got into the Pearson accord on July 7 courtesy of Alberta premier Don Getty as previously discussed?
Chuck Cook, Tory MP for North Vancouver, B.C., became openly critical of both Mulroney and Bourassa for what might be in the works between them, saying he was “scared to death”: 436
“”I’m scared to death of this,” Cook (PC-North Vancouver) said. “I fear what Mulroney and Bourassa will come out with. I fear it could blow the whole agreement apart.”
Ian Waddell (NDP-Port Moody-Coquitlam) warns of a “reverse Meech.”
“I think the sense of alienation in Western Canada would be similar to the alienation that came from Quebec” after the Meech Lake Accord’s death in June, 1990.”
Ironically Chuck Cook, who then openly campaigned against the Charlottetown accord in the national referendum in October, indeed soon died, one day before Mulroney announcing his resignation, but of lung cancer (as discussed in an earlier part of the Notes) rather than scare.
As previously also commented on, the political differences between Brian Mulroney and Joe Clark was an interesting theme that had emerged prior to, and reappeared on and off during, the Mulroney government era.
At the time of Mulroney’s 1983 Tory leadership bid to defeat and replace Clark who was viewed as on the political left, Tory strategist Dalton Camp publicly complained that Mulroney’s campaign was supported by “offshore money”, part of which turned out to be from German interests represented by businessman Karlheinz Schreiber, 437 that then continued through the Airbus Affair and to the Mulroney-Schreiber Affair – the business relationship between Mulroney and Schreiber highlighted by $300,000 Schreiber gave Mulroney from a Swiss bank account – that has been subject of a 2009 public inquiry conducted by Justice Jeffrey J. Oliphant and is one of the first issues analyzed in this blog article.
Dalton Camp was a lifelong Tory, former party president and former Mulroney cabinet adviser, but he was also a critic of the political rightwing and a supporter of Joe Clark; he was from New Brunswick and had advised former New Brunswick Tory premier Richard Hatfield whose party later lost every seat to Frank McKenna’s Liberals in 1987 (as mentioned in an earlier part of the Notes); 438 Camp perceptively remarked of Hatfield’s conservative style of politics when the latter passed away from brain cancer in late April 1991 – coincidentally only several days after Clark had taken over federal responsibility on constitutional issues from Mulroney himself: 439
“Unlike his contemporaries, he had no use for public opinion polls, believing he could find out all he needed to know by walking through the market on Saturdays.”
Prior to July 1992, the last time rumors flied about a Mulroney-Clark dispute and possible Clark resignation, in January, Camp wrote an article, “Mulroney’s myth of indispensability”, to comment on Mulroney’s style of finishing work Joe Clark had supposedly been “incompetent” to do – a familiar happening ever since Mulroney’s campaign to replace Clark as Tory leader: 440
“Thus, informed that the prime minister wanted to quit last October and take on the job of secretary general of the United Nations, we have no reason to doubt it. And we should believe he agreed to stay on at the urging of senior Tories and “Liberal senators,” who feared the prime minister’s departure would lead to terminal divisions in the Tory caucus and serious divisions elsewhere possibly “the death knell for the country.”
But the real reason Mulroney did not pursue his opportunity at the UN, [Globe and Mail editor-in-chief William] Thorsell reveals, was Joe Clark. It was because Clark, as constitutional affairs minister, “failed to bridge the gap between Quebec and anglophone ministers” and had so botched the preparations of the government’s constitutional proposals the prime minister had to take over the business and complete the task.
…
So, how come Clark is still on the job. And people should note the curious, and doubtless coincidental, fact that at or about the same time the prime minister had found Clark to be incompetent, someone else had produced a poll showing that if Clark were the Tory leader and prime minister, the party’s public support would more than quadruple.”
The rumored Mulroney-Clark dispute in late-1991/early 1992 the above quote referred to had ended with the departure of Norman Spector, Mulroney’s chief of staff and former Meech Lake accord strategist, whom Mulroney had hired from the B.C. government by way of the University of British Columbia in 1986 where he had been controversial; 441 that outcome presumably won Clark a freer hand in the upcoming constitutional negotiations.
Shortly after Charlottetown accord’s defeat in a national referendum when I – having recently left UBC and was in a legal dispute with the university and the RCMP 442 – began sending out press releases critical of Mulroney’s conduct in the constitutional process, the notion of Mulroney-Clark differences influenced me to call for Clark to stay in the constitutional affairs portfolio and account for what had led to the “constitutional fiasco”: 443
“Before taking up any new tasks, Mr. Joe Clark needs to give the people of Canada an adequate explanation for the recent Charlottetown constitutional fiasco and a satisfactory account of the full extent of damages the latest constitutional adventure of the Tory government has done to both national unity and the economy.”
As discussed previously, later Clark would indeed be kept on the constitutional affairs portfolio by Mulroney but an accounting of constitutional mishandling never came, as Kim Campbell soon took over as prime minister and in the election that followed the federal Tories nationwide came to only two seats away from replicating Richard Hatfield’s 1987 fate of annihilation in New Brunswick.
In July 1992 after reaching the Pearson accord without Quebec, Joe Clark continued to believe – despite Mulroney’s efforts to contradict him – that as long as Quebec was given enough other concessions premier Robert Bourassa would eventually accept Triple-E Senate. 444
Near the end of July, Bourassa announced that he would attend the first ministers’ meeting (luncheon) in early August, that would be his first after the Meech Lake accord’s failure; he said he received “total satisfaction” from Ottawa’s response on two of his three preconditions, the “distinct society” issue and the issue of federal-provincial powers over immigration, and would accept the federal government’s commitment on the other, namely that no new province would be created without substantial consensus in every region including Quebec. 445
The territory leaders were upset that Mulroney gave Bourassa a commitment over their objection; Northwest Territories intergovernmental affairs minister Stephen Kakfwi felt betrayed, stating, "It was agreed that there would be no bilateral negotiations” (although any agreement must have been with Clark, not Mulroney); the territory leaders and native leaders were also unhappy they were not invited to the first ministers’ lunch, but only tea with Mulroney the day after. 446
The first ministers’ luncheon at the prime minister’s summer residence at Harrington Lake took place on August 4, with Joe Clark present; the attendees agreed to meet again informally (so they would not feel the need to invite the native leaders, some of whom led by Assembly of First Nations chief Ovide Mercredi were protesting about being excluded). 447
Upon meeting with Bourassa, several premiers began to show changes in their stands: Ontario’s Bob Rae and New Brunswick’s Frank McKenna stated the Pearson accord should be open for renegotiation, or there might not be a deal; Saskatchewan’s Roy Romanow said if something as good or better came along he would change from supporting the accord; Nova Scotia’s Don Cameron and Prince Edward Island’s Joe Ghiz were also ready to abandon Senate equality; and Manitoba’s Gary Filmon refused “to draw lines in the sand”. 448
Suddenly, Newfoundland’s Clyde Wells and Alberta’s Don Getty, and unexpectedly B.C.’s Mike Harcourt, looked like the only premiers still firm on a Triple-E Senate (however as discussed previously, Getty had been the one introducing the “joint sitting” mechanism into the Pearson accord and the Triple-E Senate was really only 2.5-E). 449
The biggest bombshell of retreating came from Joe Clark telling native leaders during Mulroney’s tea, and then telling the media, that he might have misread the possibility of Bourassa accepting a Triple-E Senate, that even an equal Senate might be up for renegotiation, and that native self-government also needed to be “improved” in order for Quebec to agree to. 450
Quebec officials denied accusations that during earlier negotiations premier Bourassa over the telephone had indicated to other premiers equal Senate might be acceptable but then changed his mind after the Pearson accord was struck, but it was confirmed that Bourassa had been consulted by telephone on some of the Triple-E Senate models; one Quebec official said, “Mr. Bourassa told me it will never sell in Quebec. And we’ve always maintained the same argument although we never officially condemned it when the deal was negotiated”. 451
Bert Brown of Alberta, a leading campaigner for Triple-E Senate, accused Mulroney of jerking “the puppet strings” on the Senate issue, and Mulroney and Bourassa of “dancing to the tune of the elites in Quebec”. 452
NDP leader Audrey McLaughlin reiterated her support for the Pearson accord (despite having been an advocate of Senate abolishment), as did Tory MPs in western Canada; Alberta Tory caucus chair Ken Hughes said there would be “long-term consequences for national unity” if the Triple-E Senate principle was abandoned. 453
Reform party Leader Preston Manning declared that the public would hold Mulroney and Bourassa accountable if the Pearson accord was sabotaged; Manning said Joe Clark had had the authority on behalf of Mulroney to negotiate, and so Mulroney and his cabinet ministers from Quebec should try convincing Quebecers to accept, rather than tinkering with the accord. 454
But Joe Clark’s retreat from a Triple-E stand set the stage for Mulroney to bring (back) to the negotiation table various unequal Senate plans; the Pearson accord’s “Triple-E compromise” was now only one of six proposals: one of the other five, cited by Mulroney as from Prince Edward Island Premier Joe Ghiz, would give 24 Senate seats to every province with population of 2 million or more (i.e., Ontario, Quebec, British Columbia and Alberta), and 8 seats to every other. 455
Mulroney scheduled an official meeting of provincial premiers, territorial leaders and native leaders, to begin after mid-August with Quebec premier Bourassa attending, and announced that if it could not reach a new deal he would quickly introduce a unilateral constitutional plan in the parliament that would gear toward the needs of Quebec, and require the passage of only seven provinces representing 50% of the population as per the current Constitution. 456
In a national Tory caucus meeting, Tory MPs supported Mulroney’s constitutional-negotiation meeting plan, with Ontario caucus chair Rene Soetens calling the Pearson accord unacceptable to Ontario or Canada, saying that an equal Senate was possible but was too powerful as in the accord; Alberta caucus chair Ken Hughes acknowledged although Alberta MPs again emphasized Triple-E Senate it would be up to a new agreement by the premiers; meanwhile, Joe Clark met with Quebec Intergovernmental Affairs Minister Gil Remillard who told him Quebec was flatly opposed to an equal Senate, and Clark then mentioned to the media the option of an “interim” reform to give B.C. and Alberta a few extra Senate seats and let equal-senate supporters wait for “a better chance later”. 457
The particular unequal Senate proposal from Prince Edward Island premier Joe Ghiz cited by Mulroney, i.e., 24 seats for large provinces and 8 for smaller ones, was condemned by Alberta, Saskatchewan and Manitoba; a Saskatchewan official said Mulroney was “deliberately provoking a breakdown of the Senate-reform negotiations” by promoting a proposal that would fail. 458
But Prince Edward Island was by far the tiniest province in Canada. Leaders of the other provinces on the small side who had tasted Senate equality with the Pearson accord, especially Saskatchewan premier Roy Romanow and New Brunswick premier Frank McKenna, were now unwilling to give it up. 459
With their respective history of compromise with “undemocratic” constitutional mechanism (i.e., Romanow’s key role in introducing the “Notwithstanding Clause” in 1981-82, and McKenna’s acceptance, despite a recent overwhelming electoral mandate, of the Meech Lake accord institutionalizing provincial veto without Senate reform), these two premiers were now poised, and motivated, to play crucial roles to keep the reformed Senate equal but give away most of its ‘half-Effectiveness’ as in the Pearson accord.
More Specifically, McKenna proposed a “no-net-loss” model of equal Senate – publicized ahead of the final negotiation to begin on August 18 – which called for provinces that would lose Senate seats (especially Quebec and Ontario which would lose a large number) be compensated with the same number of Commons seats; for Senate veto on bills other than taxing natural resources, the McKenna model would simply trigger a joint sitting and joint vote by the Senate and Commons. 460
As previously discussed, this overall “joint sitting” mechanism had been in Mulroney’s unilateral constitutional plan to be unveiled on July 15 had the Pearson accord not been reached, and on July 7 when Alberta premier Don Getty put “joint sitting” in the Pearson accord for the 60%-veto scenario, the Triple-E supporters managed to include a 70% absolute veto, with some arguing for a lower, 2/3 absolute veto. 461
A week before the Pearson accord, former B.C. government constitutional adviser Mel Smith came out openly against this objective of Mulroney’s; in a The Globe and Mail article, Smith called the “joint sitting”-override mechanism a “final insult”, stating no “fair-minded Canadian” should support it: 462
“Instead, when Parliament reconvenes on July 15, the Prime Minister is intending to push for a "reformed" Senate that would reconfirm the dominance of central Canada and keep the rest of us in our place: a Senate of 118 (it is presently 104) with Quebec and Ontario keeping the 24 they now have, and the additional 14 sparsely sprinkled among the rest of the provinces.
It would be elected at the same time as the House of Commons, thus making it a body dominated by the federal party apparatus instead of reflecting regional concerns. The final insult would be that any Senate vote could be overridden by a joint sitting of the Commons and the Senate. Since the Commons is almost three times the size of the Senate and growing, the likelihood would be that the Senate would always be overridden in such a sitting – with the majority of members of the Commons, of course, coming from central Canada.
For such a weak-kneed Senate, the provinces are supposed to be sufficiently grateful that they will give Quebec a veto over any future changes to the Senate. No fair-minded Canadian should support such a proposal.”
For whatever reason an open debate on this “joint sitting” issue never ensued in the Charlottetown constitutional process, perhaps because Mr. Smith didn’t support an equal Senate anyway (who advocated a more equitable Senate seat distribution), 463, 464 or maybe the Senate not overriding the Commons had been deemed too important to Quebec – a topic that requires further analysis.
In the final negotiation headed by Mulroney, McKenna’s “no-net-loss” model with joint-sitting veto resolution on ordinary legislation was to become the basis for the Senate in the Charlottetown accord, taking away the Pearson accord’s 70% absolute veto.
John Dafoe, Winnipeg Free Press editor and columnist for The Globe and Mail, expressed his opinion ahead of the final negotiation, that the McKenna model was “utterly pointless”, in the sense that when the senators and MPs sat and vote together it would be the same number of seats for each province before and after the “Senate reform”: 465
“The chief disadvantage of the no-net-loss plan – or its surpassing virtue, depending on your point of view – is that it would be utterly pointless. On almost all legislative questions, it would do nothing to change the balance of power in Ottawa, which is what Senate reform was supposed to be all about. If there are no net losers in the plan then, clearly, there are no net gainers either. Under the McKenna plan, the final and clinching vote on a piece of government legislation would take place in the joint session of the Senate and the House of Commons. In that joint session, the relative strength of the
provinces would be almost exactly what it is today in the House of Commons.”
John Dafoe was right when it came to provincial balances, that each province’s total seats in a “joint sitting” would stay the same as proposed by McKenna. But as analyzed (in an earlier part of this blog article) per the estimation of The Ottawa Citizen columnist Don McGillivray, although each province’s joint number would not change the political-party numbers would be different due to the Pearson accord’s adoption of “proportional representation” for the Senate, except that the Senate’s size was small and so the overall joint changes would not matter much in a Commons majority-government situation – and then the Charlottetown accord would further cut the Senate size and drop the “proportional representation” requirement.
Another difference before and after was that, traditionally a legislation was decided by the Commons’ vote (the appointed Senate would try to block or change it only in an unusual situation), but in a joint sitting each province’s relative ratio would not be exactly the same – only “almost exactly” – as in the Commons before; e.g., Ontario’s 99 seats and Quebec’s 75 in the 1988 Commons of 295 466 gave Central Canada a combined 59% in the Commons, but together with 24 Senate seats each in a Senate-Commons total of 399, their combined strength would be only 55.6% in a joint sitting – still dominating the rest of Canada but could be a reduction Mulroney emphasized to other provinces.
On November 20, 1992, ten days after sending out my first press releases critical of Mulroney’s leadership and conduct and requesting constitutional affairs minister Joe Clark to account for “the recent Charlottetown constitutional fiasco” (as quoted earlier), but getting positive feedback from the media, I sent out another press release lambasting Mulroney’s “constitutional adventures” and his pushing Clark aside and resorting to “horse-trading” on constitutional negotiation: 467
“His constitutional adventures have done nothing but damages to both national unity and the economy. The horse-trading approach he employed during the final stage of the Charlottetown constitutional negotiation after he pushed Joe Clark aside (Poor Mr. Clark, he never failed Mr. Mulroney, not yet anyway), and discarded proposals based on the efforts of many experts, political leaders and ordinary people, together with his hardball tactics during the referendum campaign, caused the massive No votes across the country and the resulting division and resentments among people.”
To single out Brian Mulroney for all the blames may have been overly simplistic, but in late 1992 it was done attempting to put pressure on the issue of his leadership future.
On the other hand, Frank McKenna’s eagerness for the “joint sitting” type of Senate reform – on top of the last time when he saw no problem with the Meech Lake accord keeping an appointed Senate and giving every province a veto on future changes to the Senate – also makes one wonder what progress truly meant in his historic defeat of Richard Hatfield.
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