Will Canada Unravel After Failure of the Meech Lake Accord?

By , Michael I. Krauss is a professor of law at George Mason University, Arlington, Va. Before moving to the US, Professor Krauss was a professor of law at the Universit'e de Sherbrooke (Quebec) and was a member of the Quebec Human Rights Commission.

AFTER the recent unsuccessful effort to modify Canada's Constitution, many United States commentators pronounced the impending downfall of that country. In Quebec, discussions are under way that could lead to the adoption of its ``national'' constitution. Shades of Lithuania? Probably not. To this observer, predictions of collapse in Canada seem premature. Annexationists and those who delight in the demise of governments generally should not cheer too soon nor too loudly.

Understanding our neighbor's constitutional crisis requires a return to 1982, when Canada ``patriated'' (as its citizens are wont to say) its Constitution. Before 1982, the structure of Canadian government was determined by an 1867 British statute, the British North America Act, which could only be amended in London. The BNA Act set up a federal, but otherwise British, structure. The structure was British in that fundamental individual rights were not placed out of the reach of legislatures.

The British link delighted many Anglo-Saxon Canadians, but the desire to ``patriate'' or Canadianize the Constitution was a dream for Pierre Trudeau, the Qu'eb'ecois prime minister in the 1970s and early 1980s. Mr. Trudeau is an anti-American who demonstrated little respect for individual rights (his repression of political unrest in Quebec in 1970 is without precedent in recent North American history), and even less for private property (he nationalized some of Alberta's petroleum industry without compensation).

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In a seeming paradox, but mainly to make ``patriation'' salable to legal activists, Trudeau suggested that a Charter of Rights be attached to the ``patriated'' Constitution. Although a US-style document, this charter differs significantly from its American counterpart. For instance, it enshrines group entitlements (to ``multiculturalism,'' for example) and enables governments to override individual rights as long as this is done explicitly.

Unfortunately for Trudeau, modification requests to London in the past had entailed the consent of all 10 provinces. Unanimous consent was a daunting prospect since Quebec's government was controlled by the separatist Parti Qu'eb'ecois. Trudeau and the nine premiers from English Canada hammered out an agreement one evening in Ottawa. The proposed new constitution was sent to London, where Britain's Parliament quickly ratified it, washing its hands of the ``Canadian problem.'' A subsequent Canadian Supreme Court decision rejected Quebec's legal challenge to the validity of the process.

When Trudeau's Liberals were defeated by Brian Mulroney's Conservatives, the political pressure to ``legitimize'' the new Constitution by obtaining Quebec's assent to it was overpowering. Mr. Mulroney had been elected with substantial support from Quebec nationalists. In addition, Quebec's Parti Qu'eb'ecois government was defeated by Robert Bourassa's Liberals, de facto provincial allies of Mulroney's Conservatives. After some posturing before a mostly indifferent population, all 11 first ministers agreed in 1986, at Meech Lake in Western Quebec, to a formula remodifying the Constitution.

This ``Meech Lake accord'' provided, among other things, that:

Quebeckers would occupy three of the nine seats on the Supreme Court, with the provincial government having a determining voice in the selection of these justices;

Quebec would be constitutionally recognized as a ``distinct society'';

All provinces would have to agree to any amendment to the composition of Canada's Senate (the Senate, an appointed body like the United Kingdom's House of Lords, is nearly powerless; meanwhile, the House of Commons, 70 percent of whose members come from populous Ontario and Quebec, lacks regional balance);

All provinces would have to agree to the creation of any new province.

Nowhere in the 1982 patriation process or the 1986 Meech Lake negotiations was opinion from individual Canadians provided for. Canadians were mute about the process to begin with, and have traditionally accepted government intervention rather meekly, but as they digested the agreement many of them became apprehensive.

Some English-Canadian displeasure was unarguably a manifestation of bigotry. Nineteenth-century language legislation in many provinces has led to the assimilation of once-substantial Francophone minorities, and some Canadians are annoyed that any French-speaking communities remain in the country. But it must be noted, notwithstanding strenuous affectation of Quebec politicians to the contrary, that the bulk of public dissatisfaction with the Meech Lake accord is broad-minded:

Criticism has been voiced of the blatant double standard whereby English Canada would be forced to grant rights to now-minuscule French populations while Quebec treads on its substantial Anglophone minority. The ``distinct society'' clause could conceivably have given a constitutional seal of approval to Quebec laws outlawing most English signs in that province.

Canadian Indians were outraged to see white men creating new obstacles to their dream of something resembling self-government in the Northwest Territories. (Any new province to be created would be largely English-speaking, of course, and a Quebec veto to its creation was possible.)

Many were bitter that Senate reform seemed forestalled by the agreement. Western Canadians especially had hoped for an elected Senate with equal provincial representation, to prevent future grabs like Trudeau's National Energy Policy, wherein Ontario and Quebec conspired to lower the price of Alberta oil.

As provided for in the newly patriated Constitution itself, the Meech Lake accord could become valid only if approved by all 11 legislatures within three years. The federal government and eight provincial legislatures ratified the accord relatively soon after its signing in 1986, despite the lack of popular support for the measure. Manitoba's premier was won over just before the expiration of the three-year deadline; Manitoba would have ratified the accord were it not for its sole Indian legislator, who became a folk hero across English Canada when he refused to provide the unanimous consent required to bypass parliamentary procedural delays.

Newfoundland's government (which, like Manitoba's, was elected after the signing of the Meech Lake accord) remained unconvinced to the end. Newfoundland arguably harbors the country's strongest anti-Quebec sentiment, mainly as a result of a deal whereby the poor province effectively sold its present and future hydroelectric potential to the Quebec government for what has turned out to be a ridiculously low price. Newfoundland's premier lost no support by refusing to ``appease'' Quebec. So the Meech Lake accord died. Quebec is still not ``part of the Constitution.'' Most Qu'eb'ecois haven't the foggiest notion what this means, perhaps because it means nothing, legally. But their nationalistic pride has been undeniably wounded.

What will the future bring? Francophone business people have already displaced Anglophones fleeing Quebec's anti-English legislation. The Free Trade Agreement with the US, along with Francophone corporate control of the lucrative subsidy process in Quebec City, have given these industrialists the temerity to push for independence. Unless the corporatist mentality of much of its political elite changes, a separate Quebec could constitute a northern Argentina.

But technical problems may well vanquish the nationalistic fervor presently gripping La Belle Province. How will Canada's huge public debt be divided between Quebec and the rest of the country? If it alienates Wall Street by slashing bond ratings, will an independent Quebec continue to obtain the cheap credit needed to finance nationalized mega-projects like the James Bay hydroelectric complex? How will the millions of Canadians who have worked in both Quebec and English Canada receive their pensions?

And what will become of ``Rupert's Land,'' a northern land mass constituting over 30 percent of Quebec that was detached from the Northwest Territories and ceded to the province in the first part of the 20th century, and whose (English-speaking) Indian and Inuit population would likely insist on ``re-seceding''?

In point of fact, Quebec's social engineers and cultural nationalists already have most of the tools they need under the present constitutional structure. The provincial government has quasi-embassies, its own flag, and a ``national'' holiday. It runs a television network. It largely controls its immigration. It saddles its consumers with heavy taxes and interprovincial barriers to trade that would be inconceivable in the United States.

For their part, English-Canadian leaders desperately fear that the departure of Quebec could set off a process of disintegration that might toll the bell for a country historically lacking in patriotism.

There seems ample room for a face-saving deal among political elites here. A good guess is that Canada will muddle through, in disunity and bureaucracy, a somewhat latinized Sweden to our north fulfilling the prophecy of an early commentator that it would forever remain ``rich by nature, poor by policy.''

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