The myth of political vendetta in the Royal Canadian Mounted Police’s Airbus Affair investigation, the politics of Brian Mulroney and Jean Chretien, and some social undercurrents in Canada (Part 9)

(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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The myth of political vendetta in the Royal Canadian Mounted Police’s Airbus Affair investigation, the politics of Brian Mulroney and Jean Chretien, and some social undercurrents in Canada (Part 8)

(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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