(Continued from Part 7, previous blog post)
At the end of February 1992 the special Senate-Commons committee should produce its report; timely enough, in mid-February after that month’s first ministers’ meeting Bob Rae had written to Mulroney requesting a first ministers’ meeting on constitutional issues once the committee report was ready, and so on the eve of the report’s expected release – and shortly after Quebec intergovernmental affairs minister Gil Remillard’s comment of “no bluff” when it came to the sovereignty referendum deadline of October 26 – Mulroney extended an invitation to all premiers and territory leaders to a meeting in March to be headed by Joe Clark – the first official meeting on constitutional issues since the Meech Lake accord era. 336
The report from the Special Joint Committee for a Renewed Canada, or the Beaudoin-Dobbie committee as it was referred to, came out based on inputs from over 600 witnesses at public hearings held in various parts of the country and close to 1,000 attendees in five constitutional policy conferences held in Halifax, Calgary, Montreal, Toronto and Vancouver. 337
But that committee work was completed only after enduring partisan squabbles that had at one point suspended public hearings and in the end substantially reduced their scale, as well as divided committee opinions until the last days. 338 Following the partisan dispute in November 1991 that had aimed unsuccessfully at removing co-chair, Manitoba Tory Senator Dorothy Dobbie, came the resignation (at his doctor’s advice) of the other co-chair, Quebec Tory Senator Claude Castonguay, who was replaced by Quebec Tory Senator Gerald Beaudoin; the new co-chair had recently finished the Beaudoin-Edwards committee work on the amending formula and adopted the regional veto – a 1971 Victoria Charter idea adopted earlier by the Jean Charest committee just before the Meech Lake accord’s failure as mentioned previously; the regional-veto proposal was very much to the liking of Liberal leader Jean Chretien but was not accepted by constitutional affairs minister Joe Clark. 339
Prime Minister Brian Mulroney was pleased with the joint parliamentary committee report for the reason – important to him – that it contained all the key elements of the Meech Lake accord, and a lot more; Mulroney expressed confidence that his government would “deliver the goods”, and he scoffed at criticisms of his Meech Lake accord approach which had relied on behind-closed-doors negotiations, lashing out at Chretien’s 1981-82 “Kitchen Accord” approach: 340
“There were three men in a kitchen in the middle of the night – while the premier of Quebec was asleep right down the street here. One of the key players – he was asleep when the boys were in the kitchen. So I don’t know why people were so offended by poor old Meech Lake. Meech Lake was quite an improvement over the procedure followed in 1981-82.”
The “three men in a kitchen” in 1981-82 had been then Liberal justice minister Chretien, Saskatchewan NDP attorney general Roy Romanow and Ontario Tory attorney general Roy McMurtry, working on an agreement to bring in the “Notwithstanding Clause” in the kitchen of the Ottawa Conference Centre on the night of November 7, 1981. 341
Heading into the federal-provincial negotiations in 1992 – from March to late August when the Charlottetown accord was reached – there were progresses regarding some of the key constitutional issues that had emerged since the failure of the Meech Lake accord in June 1990: Joe Clark was warming up to the ideas of a social charter and the “inherent right” of native self-government; both ideas – championed by Ontario NDP premier Bob Rae – were endorsed by the Beaudoin-Dobbie committee; and the first meeting in March quickly reached an agreement that representatives of the native people would be full participants in the official negotiation – overcoming Clark’s initial objection that the natives did not have a government. 342
The official negotiation meetings would involve federal government representatives led by Clark and delegations representing the provinces, territories and the aboriginal people, some of them headed by premiers; Clark dubbed it the “Canada Round”, with the Meech Lake negotiations having been the “Quebec Round”. 343
But this time around there were tight constraints from both Quebec and its opponents: for the time being Quebec premier Robert Bourassa’s government continued to boycott the negotiation (until it could see good results for Quebec), besides having passed a law for a sovereignty referendum no later than October 26, 1992; on the opposite side, two months before Quebec’s enactment of the sovereignty-referendum law then B.C. (Social Credit party) premier Bill Vander Zalm, a strong supporter of Alberta’s Triple-E Senate stand, had brought in a law requiring a provincial referendum for approval of any constitutional deal – doing so days before his resignation amid the “Fantasy Gardens” scandal (a subject of interest to me also). 344, 345, 346
Adding to these provincial political intrigues integrating new popular-support requirements was the Mulroney Conservatives’ ‘secret’ agenda to institute a very weak Senate out of Senate reform.
An elected Senate had been on the agenda of discussion during the Meech Lake accord era when Mulroney adopted the idea of Senate appointments from lists of candidates submitted by the provinces – something dubbed by columnist Don McGillivray as “bait in a mousetrap” because it would have made an elected Senate impossible to achieve due to the accord’s acceptance of provincial veto on future constitutional changes, as previously discussed.
A full Senate reform prior to adoption of a veto rule then became a primary motivation for post-Meech Lake constitutional reform. In 1992, it would become the most contentious constitutional issue – a potential “deal breaker” – given the Mulroney government’s intent on instituting an elected but weakened Senate: 347
“The Tories believe the country would be ungovernable and Parliament would be in constant deadlock if the Senate could defeat bills approved by the Commons.”
The Senate-reform movement had been led by Alberta, especially by the upstart Reform party there championing the idea of a Triple-E (Elected, Equal, Effective) Senate, with a young Stephen Harper as the party’s chief policy adviser; but in early 1992 other than Alberta Tory premier Don Getty – with some support from Newfoundland Premier Clyde Wells and Manitoba Premier Gary Filmon – few believed an effective Senate with equal seats for every province would be achievable in the face of strong opposition from Quebec which would see its current 24 Senate seats reduced to only several; constitutional affairs minister Joe Clark deemed a 3-E Senate as likely as “virgin birth”. 348
In the more realistic scenario of a 2-E Senate (one that is elected), or two-and-a-half-E Senate, the politics was pitching the Mulroney Conservatives wanting substantially reduced Senate powers against others wanting more Senate powers, and Alberta’s Tory government holding the position of equal Senate but otherwise content with protecting regional interests when it came to Senate power – and willing to oppose Bob Rae’s social-charter push – against various ideas of an ‘equitable’ Senate such as the Beaudoin-Dobbie committee’s recommendation of equal seats for each of five regions – of which the largest provinces of Ontario and Quebec would each be a region (similar to the regions in the notion of regional veto). 349
The undercurrents of the politics were also pitching Brian Mulroney against Joe Clark (as leader of the progressive wing in the Tory party), with Mulroney continuing to stay on the Meech Lake accord thinking and privately telling others that Clark was “incompetent”; in January 1992 Clark had to threaten to resign in order to push Meech Lake accord strategist Norman Spector out as Mulroney’s chief of staff. 350
In contrast to the Mulroney Conservatives’ agenda and Alberta premier Don Getty’s preoccupation, in a constitutional conference held in Calgary on Senate reform (one of the five policy conferences) many attendees expressed the desire for the reformed Senate to focus on social economic issues rather than regional interests: 351
“In fact, many participants balked at the assumption that the Senate should represent regional interests, saying they would rather it was restructured as a forum for Canadians who feel left out of the political process – women, aboriginal peoples, linguistic and ethnic minorities, labor groups and the poor.”
The ascent of NDP governments in B.C. and Saskatchewan in October 1991 also represented setbacks for the Triple-E Senate drive: despite most British Columbians’ support for an equal Senate, B.C. premier Mike Harcourt’s government staked out the traditional NDP position of Senate abolishment, or in the alternate a regionally equal Senate in which the provinces of Quebec, Ontario and B.C. would each be one of five regions. 352
The controversial provincial veto in the Meech Lake accord on certain future constitutional changes, that had incurred fierce criticisms in 1987-1990 as previously detailed, was still here: after the Beaudoin-Edwards committee recommendation of a regional veto in the the amending formula was rejected by Clark, the Beaudoin-Dobbie committee and its report explored other ways to give Quebec a veto that would not be a provincial veto or regional veto, but what it considered would only give Quebec more veto power over English Canada – counter to the other provinces’ desire (particularly Alberta’s) for equality; Joe Clark made the statement that the provincial veto might be the only solution. 353
Newfoundland premier Clyde Wells reiterated his 1990 proposal made in the last weeks of the Meech Lake accord – which in its unchanged form he then helped kill – to give Quebec senators special veto power over “constitutional changes that would affect the province’s language, culture or civil law tradition”, but not beyond that extent. 354
Wells was in a better position this time: starting with the September 1991 federal constitutional proposal, Quebec’s distinctness as a “distinct society” was described as (including) its language, culture and civil law tradition, similar to Wells’s idea in his proposal of special Senate veto for Quebec; in addition, a modified version of the special Senate veto – to be exercised by Francophone senators over matters affecting French language and culture – was adopted in the February 1992 Beaudoin-Dobbie committee report; however, limiting Quebec’s special privilege to only such an extent would be more difficult because of Quebec nationalist opposition. 355
Meanwhile, Mulroney seemed to have smartened up from the Mecch Lake accord debacle when it came to Quebec/provincial veto, and began to float the idea that parts of the constitutional reform, such as the “distinct society” status for Quebec, could go ahead under the current amending formula of approval by seven provinces representing 50% of the population; but Bourassa insisted Quebec would not sign the Constitution until it included a guarantee of Quebec veto. 356
When the full constitutional negotiation led by Joe Clark went forward in April 1992 with the aboriginal leaders onboard it made immediate progress in that area, announcing a “historic breakthrough” – the first in the negotiation – to entrench the “inherent right” of native self-government in the Constitution; although most of the details remained to be worked out, Ontario premier Bob Rae praised the progress and addressed it as an issue of ‘decolonization’ – a topic that could be touchy for some Canadians as the 500th anniversary of Christopher Columbus’s discovery of America was arriving (in October two weeks before the Quebec sovereignty referendum deadline); 357 Rae said: 358
“We are now ready to accept the notion of de-colonizing our relationship with
aboriginal peoples.”
Another ‘breakthrough’ was soon announced, that of entrenching a social charter in the Constitution, also championed by Bob Rae. 359
In April Bob Rae was also the source of surprise leading to optimism in the difficult area of Senate reform: the negotiation quickly reached the consensus that a new Senate should be ‘Elected’, and Rae, representing the largest province with the most appointed Senate seats (same as Quebec at 24), hinted that Ontario would be open to a Senate with ‘Equal’ seats for every province provided its ‘Effectiveness’ was reduced – it should not have the “same power as” or be able to “cancel the work of” the House of Commons; Alberta’s intergovernmental affairs minister Jim Horsman immediately responded that the Alberta government’s proposed “bottom-line” Triple-E Senate would be mostly a chamber of “sober second thought”, i.e., with very limited veto power on legislations. 360
Joe Clark was pleased with the spirit of compromise on Senate reform; reversing his earlier pessimism he predicted the end of May as when a first ministers conference could be held (to finalize a constitutional deal); but while boycotting the official negotiation Quebec premier Bourassa was travelling in Canada to hold one-to-one meetings with the other premiers, and he vowed publicly to fight against the move toward equal Senate. 361
Soon Saskatchewan and Nova Scotia joined Alberta, Manitoba and Newfoundland in supporting an equal Senate (Nova Scotia Tory premier Don Cameron had earlier stated his province would have preferred an equal Senate but an effective Senate was more important). 362
Despite the newfound optimism for a (if not 3-E) 2.5-E Senate as a result of Bob Rae’s openness toward compromise, Ontario’s interests would dictate Rae’s positions, meaning that his positions could often be closer to those of Quebec premier Bourassa’s given the large population and large number of current Senate seats both provinces had, to those of the Mulroney Conservatives’ with their intent on a weaker Senate (for the Mulroney Conservatives if it was elected, or for Rae if it was equal), or even to the traditional NDP view of Senate abolishment (which B.C. premier Mike Harcourt adhered to); on the other side of the negotiation table, as leader for a Triple-E Senate Alberta Tory premier Don Getty also had a very weak “bottom line” on Senate power.
Such provincial focuses would not bode well for any real drive toward a Triple-E Senate.
Regarding the issue of a Quebec veto which in the Meech Lake accord had taken the form of a veto for every province, several provinces led by Alberta stood firm that there would be no constitutional veto until a new Senate was in place that would please the rest of Canada; the other four (of the five) main elements of the Meech Lake accord were steadily accepted, including the “distinct society” status for Quebec. 363
At the end of May 1992, an “extraordinary” amount of progress – with broad agreements on 14 key issues – was announced by Clark. 364
But by this time Clark was still unable to obtain a breakthrough on the makeup and powers of the Senate, and no full constitutional deal was in sight despite his optimistic prediction in April; on June 1, Rae told the media he was going to – ahead of the next round of negotiation on June 9-10 – engage in a lot of telephone conversations with the other first ministers including prime minister Mulroney and Quebec premier Bourassa, to try to get a deal on three remaining key issues: Senate makeup, strengthening the country’s economic union and federal-provincial trust, and the constitutional amending formula. 365
The feedback from the Quebec government was negative on an equal Senate, and so when the negotiation resumed in June Clark warned that if the Triple-E Senate supporters did not compromise there might not be Senate reform; two of the three NDP premiers, Ontario’s Bob Rae and Saskatchewan’s Roy Romanow, also began to advocate the NDP view of abolishing the Senate. 366
In this stalemate, an unconventional idea of an equal Senate in which senators from Ontario and Quebec would have their votes counted more than others, began to attract attention; the idea was suggested by Quebec businessman and premier Bourassa’s friend Claude Beauchamp, who pitched it to New Brunswick premier Frank McKenna who in turn suggested – to accommodate Alberta – equal votes when it came to legislation affecting natural resources involving provincial rights; Joe Clark liked the idea, and flew Saskatchewan premier Roy Romanow on a Challenger jet back from New York and to New York again afterwards where Romanow had been visiting bankers, so Romanow could consult with Bob Rae, Nova Scotia premier Donald Cameron and Prince Edward Island premier Joe Ghiz and come up with a proposal for this type of an ‘equal’ Senate. 367
It’s interesting to note the coincidence that Roy Romanow, the experienced behind-closed-doors negotiator with a history involving the “Notwithstanding Clause” in the Charter of Rights and Freedoms, and Frank McKenna, who among the three provincial premiers elected after the 1987 Meech Lake accord was the most willing to let it through in 1990, were now eager with this model of ‘equal’ Senate with unequal voting power.
Newfoundland premier Clyde Wells, the old foe of Mulroney’s Meech Lake accord, now became the only one firmly opposed to this Romanow model of different number of votes for a different senator, calling it “demeaning and insulting” and saying he would call a provincial referendum to fight it if it became part of the deal; Bob Rae, on the other hand, really liked it. 368
But it wasn’t as if Wells’s own constitutional ideas had been completely discarded. Broad details worked out during the June negotiation for the “inherent right” of native self-government included not only a clause in the Constitution to preserve and promote aboriginal distinctiveness, and court enforceability of the self-government right, but also special aboriginal Senate seats with the possibility of veto power on matters affecting natives; columnist Don McGillivray noted: 369
“Aboriginals would be guaranteed Senate seats separate from the provincial division of seats. These aboriginal senators might have the right to veto laws “in relation to certain matters materially affecting aboriginal people.””
This native-matters-only Senate veto for the aboriginal people was apparently the same type Wells had proposed for Quebec, only that here it was adapted to protecting native rights. A year earlier, the Beaudoin-Edwards committee on the amending formula had suggested that native people be given a veto over constitutional changes that would affect their rights; but the committee had also intended to exclude aboriginal issues from the current constitutional reform and incurred criticism from Assembly of First Nations chief Ovide Mercredi who said to delay native participation would be to return to the Meech Lake accord approach. 370
Notwithstanding progresses in other areas of the negotiation in June 1992, Clyde Wells would not budge on Triple-E Senate, believing the Romanow model of unequal voting powers would not be it; Wells was unswayed by prime minister Mulroney personally who invited the premiers to a special lunch session (which Quebec’s Bourassa still refused to attend) to try to soften the Triple-E side; Wells’s determination influenced Don Getty to reaffirm that Alberta was still with Triple-E. 371
During the negotiation around the Romanow model, drastic elimination of most Senate powers were seriously considered, such as a Senate without absolute veto for anything but taxation bills affecting natural resources and forestry: 372
“The five provinces favoring Triple E (Alberta, Newfoundland, Saskatchewan, Manitoba and Nova Scotia) dropped demands for an absolute Senate veto on everything but taxation bills affecting natural resources and forestry.”
Such willingness to back down by the Triple-E supporters on Senate veto power apparently reflected Alberta premier Don Getty’s “bottom line” on Senate, that it would protect the interests of a natural-resources based province Alberta had been, but should not be as strong in areas of federal jurisdiction. 373
The Mulroney government objected to any Senate veto power at all for an equal Senate: 374
“But Rae said he still could not accept equality of the provinces in the Senate, and Clark said the federal government has “a great deal of difficulty” with any veto powers for an equal Senate.”
Joe Clark’s own concern regarding Senate veto power was that the small provinces could become too powerful, when 60% of the senators would come from the six smaller provinces representing only 17% of the total population. 375
Out with the public, Reform leader Preston Manning travelled to Ottawa to complain to the Triple-E supporters that they gave up too much, and call for these provinces to hold firm on the Senate model that would have the most public support, warning against surrender in the haste behind closed doors: 376
“If they think they’re in a wringer now, there’s one worse wringer to be in and that’s to agree to something at these conferences that can’t carry the judgment of the people back home.”
After his luncheon with the premiers in late June, Mulroney told native leaders that everything now hinged on the impasse over Senate reform, and he issued an ultimatum that if the negotiation could not resolve it by July 15 his government would table a unilateral constitutional package at the Parliament and possibly call a national referendum to decide on constitutional reform, noting that the current Constitution required the support of only seven provinces representing 50% of the population for a constitutional amendment (although granting a constitutional veto to Quebec would still require consent of all provinces). 377
Under pressure from Mulroney’s deadline, the premiers agreed to another meeting among themselves to try to get a deal, to be held on Friday, July 3, and chaired by B.C. premier Mike Harcourt – with constitutional affairs minister Joe Clark attending in an unofficial capacity. 378
Prime Minister Mulroney left on that day for Europe, to attend the annual G-7 summit, July 6-8, in Munich, Germany, but he would return immediately after to “prepare for the return of Parliament on July 15”, skipping a second summit he had intended to attend in Helsinki for the Conference on Security and Co-operation in Europe. 379
From July 3 to July 7, with Mulroney out of Canada, the premiers (minus Quebec’s Bourassa) and Joe Clark reached a full constitutional deal, which included an elected and equal Senate with some general veto powers that were stronger for taxation bills affecting natural resources but less for other legislations. 380
The July 7 constitutional deal – known as the “Pearson Accord” 381 – would become the basis on which Quebec premier Robert Bourassa was invited to first ministers’ meetings led by prime minister Brian Mulroney to forge a final constitutional deal; but its ‘Triple-E’ Senate part was not liked by Mulroney, and when the Charlottetown Accord was reached in August among the changes from the Pearson Accord most of the Senate veto powers would be stripped away.
A number of issues in the Pearson accord are of particular interest here.
In addition to recognizing aboriginal people’s “inherent right” of self-government, the Pearson accord would indeed provide guarantee in the Constitution for special Senate seats for aboriginal people, but with details to be worked out later. 382
Clyde Wells’s idea of special Senate veto for Quebec (on matters affecting Quebec’s language, culture and civil law tradition) was also adapted as a mechanism where the approval by majority of Francophone senators (in addition to approval by majority of the Senate) would be required to pass “federal legislation that materially affects French language and culture”. 383
This special veto involving majority of Francophone senators did not exactly amount to a Quebec veto on major constitutional changes, as the Francophone senators were not required to be all Quebecers, and a constitutional amendment affecting Quebec would not necessarily materially affect French language and culture.
The Pearson accord separately provided a provincial veto for constitutional changes related to the Senate: 384
“Amendments to provisions of the Constitution related to the Senate should require unanimous agrement of Parliament and the provincial legislatures, once the current set of amendments related to Senate reform have come into effect.”
In other words, Quebec and every other province would have a veto on future constitutional changes related to the Senate after the current Senate reform was completed – to Don Getty’s satisfaction as he had said all along; the veto was provided only for changes to the Senate and not for other constitutional changes.
Although “civil law tradition” was not explicitly among the term “French language and culture”, the accord separately stipulated that at least three of the nine Supreme Court members “must have been admitted to the civil law bar of Quebec”; to protect this Quebec special privilege, the accord also said that future changes to the composition of the Supreme Court “should require the unanimous consent of Parliament and the provincial legislatures”, i.e., a provincial veto was specifically granted for this. 385
Recall that the worst controversy with the Meech Lake accord had been a veto it would have given to every province – as Quebec had wanted it and other provinces had wanted equality – on future constitutional changes involving the Senate, the House of Commons and the Supreme Court; at the time critics warned such unanimity requirement would make future changes to these fundamental institutions – including the old Senate – impossible. The Pearson accord took a more cautious approach, incorporating a provincial veto on future constitutional changes to a fundamental institution only after necessary reform was carried out on the institution; beyond that, the Francophone (mostly Quebecers, but the 1982 constitution had recognized French language as an official language of Canada as much as English) were granted veto power to protect their own language and culture.
Nonetheless, this improved approach to permitting future constitutional veto was still not as strictly (i.e., only) self protection for Quebec (as a “distinct society”) as Clyde Wells had envisioned.
Columnist Christopher Young was no longer warning about the danger of provincial veto contributing to a breakup of Canada as he had been with the Meech Lake accord discussed before; still, he called it “smart politics, lousy statesmanship”. 386
On Senate veto power in general, the Pearson accord categorized legislations into: bills materially affecting French language and culture, revenue and expenditure bills, bills involving fundamental tax policy changes directly related to natural resources, and ordinary legislation. 387
A Senate majority defeat or amending of a revenue and expenditure bill would only lead to a “30-day suspensive veto” which could be overridden after that time by re-passing the bill in the Commons; but a Senate majority defeat of a bill involving fundamental tax policy changes directly related to natural resources – a matter of special interest to Alberta as earlier noted – would end the bill. 388
The most interesting, and controversial, part of the Senate veto power as provided in the Pearson accord was with ordinary legislation: a 70%-vote rejection was required to defeat a bill for good, while a rejection by between 60% and 70% of the senators voting would trigger a “joint sitting” of the Senate and the Commons, where a joint vote would determine the bill’s fate. 389
Below 70% supermajority, when 8 senators each from ten provinces, 2 from each of the two northern territories and several additional aboriginal senators sat together with 312 Commons MPs, 390 the Senators’ voting power would be very meagre.
Barring this “joint sitting” mechanism Senate power was meant to be real. Overall it was “only about half-way to being Effective”. 391
This Senate half-effectiveness could still be serious when one noticed that the Senate’s political-party composition was likely to be very different from that of the Commons due to the Pearson accord’s choice of a sort of “proportional representation” for Senate election, instead of the ““first-past-the-post” system used in elections to the House of Commons and the provincial legislatures”; columnist Don McGillivray immediately calculated that the Mulroney Tories’ 1988 Commons majority had been based on a national vote that would have given them only 35 senators – 42% in the Senate – versus 30 senators for the Liberals and 18 for the NDP – a combined 57% opposition majority – and one for the Reform party. 392
So in this scenario there would be a stable Tory majority government to be balanced by a Senate with a Liberal-NDP bent (the Pearson accord did not permit defeat of a bill in the Senate to trigger an election or allow senators to serve in the cabinet), except that when the Senate mustered 60% (above its 57% Liberal-NDP majority) to oppose a Commons legislation the senators would need to sit together with the MPs, and the Commons’ larger size would see the 60% senators overpowered in a joint voting.
Take the example of 169 Tory MPs out of a Commons of 295 (57% Tory majority), as elected in 1988, 393 sitting with a reformed Senate of 84: with no free vote in the Commons the Tories would only need the support of 21 senators – a merely 25% of the Senate – to reach 190, i.e., over half of the 379 total; with the Pearson accord’s enlarged Commons of 312, the Tories’ Commons majority would stretch further and need fewer senators to win in a joint voting (assuming the ratio of the Tory majority stayed the same in the larger Commons).
A conclusion is that the Pearson accord was a fundamental improvement over the Meech Lake accord but had some genuine deficiencies, and that the newly devised Senate-Commons “joint sitting” mechanism was a big problem standing in the way of meaningful and effective Senate power.
Yet, intriguingly when the Charlottetown accord was finally reached in August, under Mulroney’s direct supervision and starting from the Pearson accord, there would be no 70% absolute veto – nothing else but “joint sitting” – in the Senate’s veto power on ordinary legislation – and with only 6 senators (instead of 8 ) from each of the ten provinces, 1 (instead of 2) from each territory and several from the aboriginal people, but with 337 MPs instead of 312 (Quebec and Ontario would receive additional Commons seats in exchange for the loss of current Senate seats). 394
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