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The History of Canada's Constitutional Development
Table of Contents
Introduction
Canada's constitutional development reflects the history of Canada itself,
its maturation into a self-governing democracy, and the steady advent of new
ideas and conditions. The Constitution, like the country, has evolved over time.
It bears a strong imprint from Canada's past, but it must also be able to adapt
to new circumstances so that Canadians will be well placed to meet the
challenges of the 21st century.
Canada's constitutional arrangements are partly written and partly unwritten.
They provide the basic framework for the operation of government by defining and
shaping the principal institutions of government and the relations among them.
They also provide for the rights of Canadians, both collectively and
individually, in relation to the state.
This brief history of Canada's constitutional development is intended to
provide Canadians with both an historical perspective and background information
on current efforts to reform the Constitution.
Constitutional Antecedents
Canada's political and constitutional development did not begin with the
arrival of the first European settlers. The aboriginal peoples of Canada had
developed a variety of languages, cultures, and systems of government, and they
entered into alliances and treaties. The Constitution of Canada recognizes and
affirms the aboriginal and treaty rights of the aboriginal peoples of Canada.
Aboriginal issues, including aboriginal self-government, remain a key element of
Canada's agenda for constitutional change.
Formal constitutional development in Canada began with the Edict creating the
Sovereign Council of Quebec in 1663, whereby the French established New France
as a royal province and made provision for civil government. Following the
transfer of Canada to British rule, the Royal Proclamation of 1763 established,
among other things, certain principles respecting civil government in Quebec and
relations with aboriginal peoples.
In the years immediately preceding the American Revolution, the British
government became increasingly engaged in the question of how to maintain the
loyalty of its new Canadian subjects. Mindful of the significant cultural
differences between Quebec and the rest of British North America, the
Westminster Parliament passed the Quebec Act, 1774, authorizing the use of
French civil law and permitting the free exercise of the Roman Catholic
religion. This act is the original legal source of Quebec's subsequent position
affirming its continuing recognition as a distinct society in North America.
Following the American revolution and the influx of many Loyalists, the
Constitution Act, 1791 divided Quebec into two provinces, Upper and Lower
Canada, each with an elected assembly. The elected assemblies permitted
Canadians to enjoy representative government for the first time and to control
the imposition of new taxes. However, the executive branch of government was not
accountable for its policies, programs, and activities to the elected assembly,
and this lack of accountability led in time to strong dissatisfaction among
elected leaders.
In 1837-38, there were revolts in Upper and Lower Canada and demands for a
system of responsible government. Constitutional government was suspended, and
Lord Durham was sent to Canada to enquire into the situation and make
recommendations. The Durham Report made two key recommendations:
- That Upper and Lower Canada be joined in a single legislative union, the
use of French be proscribed, and the assimilation of the Francophone
population by the Anglophone population be fostered;
- That responsible government be established.
The Union Act, 1840 sought, but failed, to achieve the first objective. Eight
years later both English and French were placed on an equal footing for all
official purposes. Although the Union Act had not provided for responsible
government, this second objective was achieved under Canada's
"unwritten" Constitution -- the traditions, customs, practices, and
legislation of greater or lesser importance that almost inevitably supplement or
complement the written constitution of any state.
The Unwritten Constitution
Responsible government, one of the most fundamental aspects of Canada's
Constitution, is to be found not in the written Constitution, but rather in
established custom and precedents. Responsible government and other features of
Canadian democracy were fashioned after the British model of government, which,
having no formal, written constitution, continues to rely on unwritten
constitutional conventions as the basis for parliamentary democracy.
Responsible government denotes a system wherein the members of Cabinet are
collectively responsible to the elected House for the actions of the executive.
If they lose the confidence or support of the elected House, they must resign or
seek a new mandate.
Canada's system of responsible parliamentary government derives from
instructions sent by the Colonial Office to the governors in British North
America in 1846. Following general elections in Nova Scotia, the assembly
adopted a vote of no confidence in the administration on January 25, 1848. The
executive council resigned two days later and, on January 28, J.B. Uniacke
formed the first responsible government in British North America.
Conventions and precedent remain to this day the basis of responsible
government in Canada.
Confederation
The legislative union of the two Canadas in 1840 did not create a stable
system. The equality of representation of the two Canadas in the elected
assembly did not reflect their differences in population, wealth, contributions
to public revenue, and fiscal need. Although a legislative union had been
created, it had to govern two distinctly different societies: notably, French
civil law applied in Canada East whereas British common law applied in Canada
West; education was predominantly French and Catholic in Canada East whereas it
was predominantly English and Protestant in Canada West.
From the outset, the existence of two legal systems required that there be
two attorneys general in the government. Duality was further reflected by the
fact that, for almost two thirds of the duration of the Union of the two Canadas,
even the position of premier was shared by representatives of Canada East and
Canada West (e.g., Baldwin and Lafontaine, Cartier and Macdonald).
By the 1850s, cultural, sociological, demographic, and political
considerations favoured a loosening of the union along the following lines:
-
contentious issues, such as education, the administration of justice, and
property and civil rights, could be taken out of the union legislature and
devolved to local governments;
-
issues of broad common concern, such as trade and commence, defence, and
banking, could continue to be regulated by the central authority.
However, if there were pressures to loosen the bonds of union, there were
also factors that militated in favour of a strong central authority:
-
the decline of the timber trade and the loss both of imperial preference
in Britain and of reciprocity with the Americans threatened the economic
well-being of the colonies in British North America;
-
the recent American civil war had demonstrated the fragility of a
decentralized federal system;
-
the presence of demobilized American troops in the northern states and
repeated raids by the Fenians into Canadian territory introduced into the
debate an element of fear of military intervention; and
-
the major impetus for federalism came not from the desire by separate
states to give up some of their sovereignty to a new union, but rather from
a need to adjust an existing union.
Between 1864 and 1867, political leaders from the Province of Canada and the
Atlantic provinces met in Charlottetown, Quebec City, and finally London to
examine the possibility of creating a new federal union and to propose the terms
on which the new federation would be based. Ultimately, the terms for the
creation of the new federation were debated only in the Union Parliament. The
legislative debates in Nova Scotia and New Brunswick were limited to the
question of whether or not to send delegates to the London Conference, where the
final negotiations took place.
The federal union that came into being on July 1, 1867, was highly
centralized both for the reasons mentioned above and because the federal
government assumed some of the powers previously exercised by the British. The
1867 Constitution provided that:
-
the lieutenant-governors of the provinces were named and paid by the
federal government and could, on federal instruction, reserve any provincial
bill for approval or rejection by the Governor General in council;
-
the Governor General in council could disallow any provincial law within
a year of receiving a copy of it;
-
the federal government had unlimited taxing powers, whereas the provinces
were limited to direct taxes within the province;
-
Parliament could declare any local work or undertaking, although wholly
located with a province, to be for the general advantage of Canada or two or
more provinces and, therefore, under the legislative jurisdiction of
Parliament;
-
section 91 of the Constitution gave the federal government more exclusive
powers than were held in the already existing federations of the United
States and Switzerland;
-
the federal government enjoyed residual plenary powers through its
general power over "peace, order and good government", in contrast
to the American and, later, Australian models, where residual powers were
allocated to the states.
Federal authority was further strengthened by the fact that the Senators were
appointed for life by the Governor General in council, whereas in 1867 American
senators were indirectly elected by the state legislatures to represent state
interests within the federal legislature. Furthermore, the Constitution gave
authority to Parliament to establish a general court of appeal for Canada: the
Supreme Court of Canada, created by Parliament in 1875, is now the final referee
of constitutional disputes between the federal and provincial governments;
moreover, its judges are named by the federal government.
Nevertheless, while the 1867 agreement created a highly centralized
federation, parts of the agreement specifically recognized Quebec's
distinctiveness in the tradition of the 1774 Quebec Act -- including the
official status of French in Quebec, and the protection of the province's civil
law.
Confederation itself was a creative innovation to cope with the major
constitutional and economic problems of the day. For instance, the new system
combined responsible parliamentary government and federalism in a completely
original way, unlike the existing American or Swiss federative models, which
were not parliamentary. The Canadian model subsequently influenced Australia and
several other federations.
Evolution since Confederation
When Canada ceased to be a colony of Britain following the passage of the
Statute of Westminster in 1931, the federal government assumed jurisdiction over
Canada's external affairs and other matters previously under the authority of
the British government.
The distribution of powers between the two levels of government has been
amended formally only four times since 1867:
-
in 1940, Parliament gained exclusive jurisdiction over unemployment
insurance;
-
in 1951, Parliament was empowered to legislate with respect to old age
pensions, subject to provincial paramountcy;
-
in 1964, Parliament's power over old age pensions was extended to
supplementary benefits, subject to provincial paramountcy;
-
in 1982, the powers of the provinces over natural resources were
confirmed and strengthened.
It should also be noted that, although the proclamation of the Canadian
Charter of Rights and Freedoms did not transfer any areas of legislative
jurisdiction from the provinces to Ottawa or vice versa, it did impose new
limits on the legislative and executive powers of both levels of government.
Excluding certain cases where the Charter may be overridden by the
"notwithstanding clause", both federal and provincial legislation and
executive actions must now conform to the Charter.
Formal constitutional amendment, therefore, has not played a major role in
shifting the balance of power between the federal and provincial governments.
However, constitutional amendment is not the only way of altering that balance.
Circumstances -- and the way governments respond to them -- can significantly
alter in practice the importance of the powers exercisable by each order of
government. For example, in the 1930s, social and economic dislocations caused
by the Great Depression inspired new provincial initiatives in the area of
social policy. On the other hand, during the Second World War, the federal
government exercised the plenitude of its powers to direct the war effort, and
the federation once again became highly centralized.
The rise of social consciousness after the Second World War brought about
more activism in areas of provincial jurisdiction, such as education, health,
and welfare. Interest in new social programs often came from within the
provinces -- particularly in the case of Saskatchewan. But the federal
government also became involved, sometimes by using its spending power to make
direct payments in areas of provincial jurisdiction to institutions and
individuals, such as grants to universities and scholarships to university
students.
Some prominent critics of Canadian federalism opposed federal grants to
universities in 1957 because the grants obscured the lines of political
responsibility: if the provinces had exclusive jurisdiction over education, they
alone should determine the level of public funding for universities, and they
alone should be held accountable to the people for decisions taken on the issue.
The federal government also used its spending power to initiate national
shared-cost programs in areas of exclusive provincial jurisdiction. For example,
the federal government offered money to the provinces if they established
medicare programs. The provinces alone would be responsible for legislating the
programs, regulating them, and establishing standards. The federal government
would make payments only if provincial programs respected a number of principles
or norms: for example, the programs would have to be publicly administered,
comprehensive, universal in application, and accessible, and benefits would have
to be portable among the provinces. Some critics maintained that such federal
initiatives distorted provincial priorities and political responsibility for
government action.
The federal government also initiated a program of equalization payments to
provinces whose revenues were below the average for all the provinces. These
unconditional payments were designed to improve the fiscal capacity of
"have not" provinces so that they would be able to provide an
appropriate range of public services without resort to an unreasonably heavy
level of provincial taxation.
The effect of spending-power initiatives was paradoxical. On one hand, they
led to a more fiscally decentralized federation. On the other hand, the
conditions attached to some transfer payments gave Ottawa greater authority over
policy development in the area of social policy.
Nevertheless, the federal government has not, for many years, used some of
the exceptional powers granted to it in 1867 to override provincial
jurisdiction. For example, it has not used the powers of reservation and
disallowance since the Second World War, and the declaratory power has been
invoked rarely in recent years for new matters.
Judicial interpretation, another method of altering the balance between the
two orders of government, merits special attention.
Judicial Interpretation of the Constitution
By interpreting the general provisions of the formal Constitution and
applying them to specific disputes, the courts have played a central role
adjusting the Constitution to changing conditions and ideas. They have, in the
words of one constitutional expert, added the "flesh and blood to the bare
bones" of the Constitution.
The courts' decisions have shaped the Constitution and the country
immeasurably.
Although the Supreme Court of Canada was established in 1875, Canada's court
of final appeal until 1949 was the Judicial Committee of the Privy Council in
London, England.
Until 1982 and the coming into force of the Canadian Charter of Rights and
Freedoms, the majority of constitutional cases considered by the courts
concerned sections 91 and 92 and related sections of the Constitution Act, 1867,
where legislative powers are enumerated and distributed between Parliament and
the provincial legislatures.
The Judicial Committee was acutely sensitive to the conflicting claims of the
central and provincial authorities in Canada, and to the need to create a
balance between these two levels of government. The Committee's legacy – the
principle that both Parliament and the provincial legislatures are supreme in
their respective legislative jurisdictions – is one of the principal themes of
Canadian history.
The Judicial Committee not only resisted the centralizing tendencies of the
Constitution, but also, over time, shaped the constitutional distribution of
powers in the most fundamental way.
The Committee established precedents that gave, for example, narrow
interpretation to the principal federal powers, such as the "residual"
and "trade and commerce" powers, and wide interpretation to the
provincial power over "property and civil rights", which became, for
all intents and purposes, an alternative residual power.
In 1949, Canadian appeals to the Judicial Committee were ended, and the
Supreme Court of Canada became the court of final appeal.
Since 1949, the Supreme Court has presided over a general strengthening of
government power at both the federal and the provincial levels as Canadian
society and the economy have become more complex and difficult to manage.
However, the Court has been conscious not to tilt the balance of power between
Parliament and the provincial legislatures unduly one way or another.
If a government is displeased with the Court's ruling on any matter, it may
seek an amendment to the formal Constitution, although this is not an easy
process. Saskatchewan and Alberta, however, pressed successfully in the 1981
accord for an amendment to section 92, increasing provincial control over
natural resources with respect to taxation and interprovincial exports.
The Charter of Rights, in place since 1982, has significantly expanded the
scope of judicial review in Canada. Now, a government's legislation not only
must be within its legislative jurisdiction, but also must not violate the
provisions of the Charter.
Although it has given the courts new power to prescribe constitutional norms
with respect to fundamental rights and freedoms in the relations between state
and society, and therefore to transform Canadian society, the Charter does not
directly affect the distribution of powers between Ottawa and the provinces,
which remains guided principally by sections 91 to 95.
Patriation, the Amending Formula, and
Constitutional Renewal
When Canada's independence from Britain was recognized in principle in the
Balfour Report of 1926, Canadians faced the task of developing a constitutional
amendment procedure that would permit the patriation of the Constitution (which
was then a British statute) and ensure that Canada's future constitutional
development could be undertaken by Canadians without reference to a foreign
Parliament.
Prior to 1968, discussions on the amending formula were always held on their
own merits – in 1927, 1931, 1935-1936, 1950, 1960-61, and 1964 – without
being linked to other questions of substantive change. Ultimately, these
discussions all ended in failure. Formal changes to Canada's Constitution
consequently remained under British legislative authority when the Statute of
Westminister was adopted in 1931 and Canada's independence was recognized in
law.
In 1968, the Prime Minister and all the Premiers agreed to launch, for the
first time in Canada's history, a broad constitutional renewal process that
included not only patriation and an amending formula, but also changes to
national institutions and the distribution of powers, as well as the
entrenchment of rights in the Constitution.
Agreement in principle was reached on a limited set of proposals at the
Victoria Conference in 1971, but ultimately they were not adopted, and the
Constitution remained a British statute. A more limited exercise, conducted in
1975-76, was aimed at patriation with an amending formula, without pursuing
substantive changes to the Constitution at the same time. However, it also ended
in failure.
Although Quebec has been calling for increased provincial powers for years,
the election of the Parti Québécois in 1976, on a platform calling for a
dramatic distancing of Quebec from the rest of the Canadian federation, made
constitutional renewal seem all the more pressing. The federal government
responded by publishing its vision of constitutional renewal in A Time for
Action in June 1978. Between October 1978 and February 1979, governments worked
intensively on a 12-item agenda for constitutional change, but the February
Conference of First Ministers ended in failure to reach agreement on any change.
In late 1979, the Parti Québécois government released a paper on Canadian
federalism that called for a radical recasting of the Quebec-Canada
relationship. The paper did not advocate Quebec's complete institutional
withdrawal from Canada, but rather called for the creation of a very loose
"partnership" between Quebec and Ottawa, called
"sovereignty-association".
A referendum to seek a mandate to negotiate such an arrangement was set for
May 20, 1980. On May 14, the Prime Minister of Canada promised Quebecers a
"renewed federalism" if they voted "No" in the impending
referendum.
"I know that I can make a most solemn commitment," he said,
"that following a ‘No' vote we will immediately take action to renew the
Constitution and we will not stop until we have done that." Six days later,
Quebecers voted not to give their government the mandate to negotiate
sovereignty-association.
The referendum and the pledge of the Prime Minister and the majority of the
other Premiers during the referendum campaign heralded the start of a new,
vigorous effort to patriate the Constitution. The summer witnessed a series of
federal-provincial ministerial meetings, which culminated in the First
Ministers' Conference of September 1980.
Some of the major issues discussed at the summer meetings had reflected the
federal government's own agenda: patriating the Constitution with a
made-in-Canada amending formula; a statement of principles; a charter of rights;
a constitutional commitment to reduce regional economic disparities (sometimes
called "equalization"); and a strengthening of federal powers over the
national economy.
Other issues arose from the provinces' long-standing calls for increased
authority in certain areas: natural resources, communications and broadcasting,
family law, and offshore resources and fisheries. The provinces also sought
reform of the Senate and Supreme Court of Canada so that these institutions
would better reflect the federal nature of Canada.
The provincial agenda reflected matters that had been raised in the 1978-79
discussions and was similar in orientation to positions advocated by the
Canadian Bar Association (1978), the Pepin-Robarts Task Force (1979), and the
Liberal Party of Quebec's Livre Beige (1980).
At the September conference, however, the First Ministers failed to reach
unanimous agreement on any single item. Consequently, on October 6, 1980, the
federal government indicated that it intended to patriate the Constitution
unilaterally, without the consent of the provincial premiers, by introducing a
Joint Address to the Queen in the House of Commons.
Eight of the provinces immediately protested this unilateral action.
Manitoba, Quebec, and Newfoundland referred the matter to their courts and the
matter was ultimately referred to the Supreme Court of Canada by the federal
government. On September 28, 1981, the Supreme Court of Canada rendered its
decision that a "unilateral" patriation of the Constitution was legal.
But it added that a "substantial degree" of provincial consent was
required by constitutional convention before the federal-provincial relationship
could be fundamentally altered by a request to Britain for constitutional
amendment.
In the wake of the Court's decision, the federal government convened another
First Ministers' Conference on November 2, 1981. Ottawa and the provinces, with
the exception of Quebec, ultimately agreed on a package of constitutional
reforms, including the patriation of the Constitution with an amending formula
and a charter of rights; a commitment to equalization; the strengthening of
provincial control over natural resources; and the recognition and affirmation
of the existing rights of Canada's aboriginal peoples.
The agreement represented a compromise between nine provinces and the federal
government. These provinces accepted Ottawa's proposal for a Charter of Rights
in exchange for both the right to override certain portions of the Charter by
means of the notwithstanding clause, and the inclusion of an amending formula
devised by the provinces.
However, the Quebec government continued to dissent, arguing that Quebec's
claims had been ignored, that a deal had been reached without Quebec's
knowledge, and that the Prime Minister had reneged on his promise of
"renewed federalism". On December 1, 1981, by resolution, the National
Assembly rejected the patriation package. Indeed, throughout Quebec, the
patriation experience left many feeling wounded and isolated.
The Meech Lake Accord, 1987
Following the April 17 proclamation of the Constitution Act, 1982, the
Supreme Court of Canada ruled that Quebec had no veto in law or practice over
patriation of the Constitution. Quebec, in consequence, was legally bound by the
Constitution Act, 1982.
However, both the government and the National Assembly of Quebec refused to
accept the terms for patriation agreed by the Prime Minister and nine Premiers
on November 5, 1981, and denounced the political legitimacy of the Constitution
Act, 1982, which, by virtue of the Charter, curtailed the powers of the National
Assembly without its consent. To underline its rejection of the political
legitimacy of the Act, Quebec began to invoke the notwithstanding (or override)
clause of the Charter automatically and systematically in all legislation.
In May 1985, the Parti Québécois government published a Projet d'accord
constitutionel, which set out 22 conditions for accepting the legitimacy of
the Constitution Act, 1982. Those conditions would have radically altered the
constitutional distribution of powers and would have removed Quebec from the
application of most of the Canadian Charter of Rights and Freedoms. No
intergovernmental discussions were held on this proposal.
In December 1985, the Liberal Party of Quebec came to power and, a few months
later, made known its wish to seek a return to the constitutional fold on the
basis of five points set out in Maîtriser l'avenir, its political platform. The
new Quebec government also ceased to invoke the notwithstanding clause
automatically in all new Quebec legislation.
Quebec's return became the priority of all the Premiers at their annual
conference in August 1986, and all First Ministers agreed to intensify
discussions in November 1986. Agreement in principle was reached on a package of
amendments at Meech
Lake on April 30, 1987, and on a legal text at the Langevin Building on June 3
of that year. The five key elements of the agreement related to a constitutional
interpretative clause respecting Canada's linguistic duality and Quebec's
distinct society, a constitutional veto for all provinces on certain
institutional matters, provincial participation in the nomination of Supreme
Court judges, compensation for provinces opting out of new national shared-cost
programs under certain conditions, and a strengthening of provincial powers over
immigration.
Since the Meech Lake agreement contained amendments requiring unanimous
legislative approval – for which there was no time limit for ratification –
and amendments requiring the consent of Parliament and two-thirds of the
legislative assemblies representing at least 50 per cent of the population –
for which a three-year time limit existed – it was held that:
However, the Meech Lake Accord ultimately failed to be ratified within the
three-year deadline and died on June 23, 1990.
The Charlottetown Accord
The Meech Lake Accord failed to pass because it was not adopted by the
legislative assemblies of Newfoundland and Manitoba within the three-year
deadline. Although it had been adopted by the House of Commons – twice – and
by all of the other provincial legislative assemblies, there was a popular
perception among French-speaking Quebecers that Quebec had been
"rejected" by English-speaking Canada. Nationalist sentiments ran high
and on June 24 – Saint-Jean Baptiste day – the streets of Montreal teemed
with blue and white provincial flags.
Polls suggested that more 60 per cent of Quebecers would have supported
sovereignty if a referendum were held at that time. Indeed, sovereigntists
called for an immediate referendum.
Throughout the rest of Canada, feelings were also running high. In some
quarters, there was a call for Quebec to become a province like all the others
or to depart – and not necessarily on the most generous terms. There was anger
also among those who had felt excluded from the Quebec Round and who wanted to
see their constitutional goals realized.
All governments responded to this situation by setting up consultative
mechanisms to dialogue with the people, to broaden the debate to deal with the
concerns of all Canadians, and to restore calm. The federal government set up
the Citizens' Forum on Canada's Future to enquire into the values Canadians
share and the Beaudoin-Edwards Special Joint Committee on the amendment
procedure. A Royal Commission on Aboriginal Peoples was also established.
On September 28, 1991, the Government of Canada published Shaping Canada's
Future Together, its proposals for constitutional change. They were broad and
far-reaching. They dealt with, among other things: the Canadian identity;
Quebec's distinctiveness; the Aboriginal peoples; the reform of national
institutions; the economic union; clarifying the distribution of powers,
including the spending power, to serve Canadians better; and streamlining
government. The federal government also published a series of background papers
on constitutional issues to facilitate public debate.
The proposals set out in Shaping Canada's Future Together were examined by a
special joint committee on a renewed Canada – eventually known as the
Beaudoin-Dobbie Committee. The Government of Canada convened a series of five
national conferences to discuss various aspects of its proposals for
constitutional renewal. At the conclusion of this process in February 1992, the
Beaudoin-Dobbie Committee published its report titled A Renewed Canada. The
Committee's report served in part as the basis for comprehensive multilateral
negotiations among the Government of Canada, the provincial governments
(including Quebec in the last stages of negotiations), the territorial
governments and Aboriginal representatives. These negotiations, involving 17
delegations, reached a unanimous constitutional agreement at Charlottetown
on August 28, 1992.
The Charlottetown Accord included the inherent right to Aboriginal
self-government, recognition of Quebec's distinct society, a Canada clause, an
equal Senate, a veto for all provinces over subsequent institutional reform
except the creation of new provinces in the territories, strengthened
legislative jurisdiction for the provinces, a better reflection of
representation by population in the House of Commons and a guarantee in
perpetuity of at least 25 per cent of the Commons seats for Quebec.
With respect to ratification of the agreement, First Ministers agreed at
Charlottetown to hold two referendums on October 26: one in all of Canada,
except Quebec, under federal auspices and one in Quebec under that province's
jurisdiction. As a political matter, it was further agreed among leaders that
the referendum would have to be supported in all provinces in order to pass,
although this was not legally required. On October 26, a majority of Canadians
in a majority of provinces, including a majority of Quebecers and a majority of
Indians living on reserves, voted "no".
However, it could not be alleged that Quebecers had been rejected by the rest
of Canada, the rest of Canada had been rejected by Quebec, or Aboriginal peoples
had been rejected by non-Aboriginal peoples. This led to a generalized calm
following the referendum, unlike the mood following the failure to ratify the
Meech Lake Accord.
Amendments Proclaimed since 1982
The high profile failures to amend the Constitution under the terms of the
Meech Lake and Charlottetown Accords may have created the perception that
constitutional change is not possible. However, that is not the case. Since the
amending formula was adopted in 1982, seven amendments to the Constitution have
been successfully completed and proclaimed into law.
The first, the Constitution Amendment Proclamation, 1983, occurred in 1984
and was concerned with Aboriginal rights. The second, the Constitution
Amendment, 1987 (Newfoundland Act), dealt with the entrenchment of the
denominational school rights of the Pentecostal Assemblies in Newfoundland. The
third, the Constitution Amendment, 1993 (New Brunswick), established the
equality of the English-speaking and French-speaking communities in New
Brunswick. The fourth, the Constitution Amendment, 1994 (Prince Edward Island),
relieved Canada of the obligation to provide steamboat service to the Prince
Edward Island upon completion of a "fixed link" joining the Island to
New Brunswick. The fifth, the Constitution Amendment, 1997 (Newfoundland Act),
granted the Newfoundland House of Assembly additional powers to organize and
administer the province's denominational school system. The sixth, the
Constitution Amendment, 1997 (Quebec), removed the province's requirement to
provide denominational schools, facilitating the establishment of a
linguistically-based system of education. The seventh, the Constitution
Amendment, 1998 (Newfoundland Act), removed the province's requirement to
provide denominational schools and enabled the province to modernize its school
system.
Recent Non-Constitutional Evolution
In addition to formal constitutional amendments, the Canadian federation has
developed and evolved through a step-by-step process of non-constitutional
reform. Some of these changes sought to respond to commitments Prime Minister
Jean Chrétien made to Quebecers in a speech at Verdun on October 24, 1995,
towards the end of the Quebec referendum campaign on sovereignty. The Prime
Minister promised: to recognize Quebec as a distinct society within Canada; to
make no constitutional changes affecting Quebec without its consent; and to
bring decisions and services closer to citizens.
The Quebec referendum was held on October 30, 1995, and the sovereignty
mandate was defeated by a vote of 50.6 per cent "No" to 49.4 per cent
"Yes".
Following the referendum, in December 1995, the House of Commons and the
Senate passed a resolution recognizing Quebec as a distinct society within
Canada. In particular, the resolution proclaims the distinct character of
Quebec's unique culture, civil law tradition and French-speaking majority. Under
the terms of the resolution, the House of Commons and Senate "undertake to
be guided by this reality" and "encourage all components of the
legislative and executive branches [of the federal government] to take note of
this recognition and be guided in their conduct accordingly".
In addition, a form of veto for Quebec over constitutional change was also
adopted. On February 2, 1996, Bill C-110, the regional vetoes law, came into
force. The Bill requires the consent of Quebec, Ontario, British Columbia, the
Prairies and the Atlantic region before the Government of Canada can propose a
constitutional amendment to Parliament.
In the February 27, 1996 Speech from the Throne, the federal government
proceeded with a third element of non-constitutional evolution when it made a
commitment not to use its spending power to create new shared-cost programs in
areas of exclusive provincial jurisdiction without the consent of a majority of
provinces. The federal government promised that any new program will be designed
so that non-participating provinces will be compensated, provided they establish
comparable initiatives.
Similarly, the federal government has sought to clarify its role with respect
to the provinces in sectors such as mining, forestry, recreation, social
housing, tourism and labour market training.
Indeed, the 1996 Throne Speech proposed a new approach to labour market
measures respecting the best exercise by each level of government of its own
responsibilities. Since then, labour market agreements have been completed with
nine provinces, including Quebec, and the two territories.
The Government of Canada remains committed to modernizing the federation and
to working in partnership with the provinces. That is why it has welcomed the
provinces' desire to pursue the Calgary Declaration, which builds on the work
achieved after the 1995 Quebec referendum. It is the federal government's belief
that this collaborative approach will strengthen national unity and advance our
efforts to fully recognize the diversity of Canada, including the unique
character of Quebec.
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