From the Backroom to the Front Line: Making Constitutional History or Encounters with the Constitution: Patriation, Meech Lake, and Charlottetown

McGill Law Journal ~ Revue de droit de McGill

FROM THE BACKROOM TO THE FRONT LINE: MAKING

CONSTITUTIONAL HISTORY

OR

ENCOUNTERS WITH THE CONSTITUTION:

PATRIATION, MEECH LAKE, AND CHARLOTTETOWN

Mary Dawson, C.M., Q.C.*

Toward the end of the previous century,
Canadians experienced an unprecedented peri-
od of constitutional activity involving changes
and proposed changes to our constitution, three
referendums, and a series of important court
decisions. The patriation of the constitution of
Canada was formally proclaimed in Canada on
April 17, 1982. The new amending formula was
tested in a series of constitutional negotiations.
The two most prominent of the proposed
amendments, the Meech Lake and Charlotte-
town Accords, although ultimately unsuccessful,
had a very significant impact. A number of oth-
er, less extensive amendments were achieved
with little controversy. In this lecture, as draft-
er of the proposed amendments and former le-
gal advisor to the Government of Canada, I will
look back on the drama of these events, paying
particular attention to the context in which they
took place, the different processes that were
carried out, the events that were taking place in
the backrooms, and the aftermath of some of
these initiatives.

Vers la fin du sicle dernier, les Canadiens
et Canadiennes ont vcu une priode dactivit
constitutionnelle sans prcdent, incluant des
changements effectifs et proposs notre cons-
titution, trois rfrendums et une srie de dci-
sions judiciaires importantes. Le rapatriement
de la constitution du Canada a t formellement
proclam le 17 avril 1982. La nouvelle formule
damendement a t mise lpreuve dans une
srie de ngociations constitutionnelles. Les
deux propositions damendement les plus pro-
minentes, les Accords du Lac Meech et de Char-
lottetown, ultimement sans succs, ont eu un
impact significatif. Un certain nombre dautres
amendements, moins controverss, ont t r-
ussis avec peu de bruit. Dans cette confrence,
en tant que rdactrice des amendements propo-
ss et ancienne conseillre juridique pour le
Gouvernement du Canada, je reviendrai sur ces
vnements, portant particulirement attention
au contexte dans lequel ils eurent lieu, aux dif-
frents processus utiliss, aux vnements se
droulant dans les coulisses et aux rpercus-
sions de certaines de ces initiatives.

* Prepared for the 2012 McGill Law Journal Annual Lecture on February 29, 2012. Mary
Dawson, C.M., Q.C., is currently the conflict of interest and ethics commissioner of
Canada. She retired as associate deputy minister from the Department of Justice of the
Government of Canada in 2005. She was the lead legal advisor to the Government of
Canada on constitutional matters from 1986 until her retirement and was responsible
for drafting all constitutional amendments from 1981 until her retirement.

Citation: (2012) 57:4 McGill LJ 955 ~ Rfrence : (2012) 57 : 4 RD McGill 955

Mary Dawson 2012

956 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Introduction

I.

Background
A. Forces for Change

II. The Constitution Act, 1982

A. Moving Forward
B. The Special Joint Committee
C. The November Conference
D. November 5: Consensus Reached
E. The Afternoon Meeting
F. After the Conference
G. The UK Parliament
H. Final Comments

III. After Patriation

A. The Canadian Charter of Rights and Freedoms
B. The Aboriginal Peoples of Canada
C. Applying the New Amending Procedure
D. The French Version of the Constitution

IV. The Meech Lake Accord

A. An Agreement Reached
B. The Agreement Unravels
C. Echoes of Meech Lake

V. The Charlottetown Accord

VI. The Aftermath

VII. Final Thoughts

957

957
958

959
959
960
962
963
966
967
969
970

971
971
972
974
977

978
980
983
989

991

997

999

 MAKING CONSTITUTIONAL HISTORY 957

Introduction
I am honoured to have been invited to deliver the McGill Law Journal

Annual Lecture for 2012. It is a special pleasure for me to do so, as I re-
ceived my B.A. and B.C.L. from this university.

This year marks the thirtieth anniversary of the patriation of the con-
stitution. I have therefore chosen as my topic the experiences that I have
had in relation to constitutional developments in Canada. I became in-
volved in these developments in September 1980, when I took on a leader-
ship role in the Drafting Section of the Department of Justice in Ottawa. I
remained involved as principal legal advisor and drafter until my retire-
ment in 2005.

I. Background
Canada was the first of the former British colonies to achieve an inde-
pendent status, but because its founding statute, in 1867, did not estab-
lish procedures for major amendments to the constitution to be made in
Canada, that task remained with the UK Parliament,1 as it turned out,
until 1982.

It was not for want of trying that Canada was unable to devise an
amending procedure for itself. Important advances were made with the
Statute of Westminster, 1931.2 This act removed the rule that UK statutes
had supremacy over dominion3 laws (section 2) and provided that no UK
act would apply in the future to a dominion unless the act expressly de-
clared that the dominion had requested and consented to the enactment
(section 4). However, the power to make major amendments to our consti-
tution was left to the UK Parliament. This failure to agree on an amend-
ing formula persisted for another half century despite many, many at-
tempts to find a consensus at numerous federal-provincial constitutional
conferences.
My intention in this presentation is to provide an overview of the con-
stitutional activities that I was directly involved in, and to give some in-
sight into the forces behind the proposals, the processes that were fol-
lowed, including in the backrooms, and the aftermath of some of these ini-
tiatives. I will describe in some detail the drama of the final months lead-

1 This was not the case for the other colonies that became independent somewhat later.
See, for example, The Commonwealth of Australia Constitution Act ((UK), 63 & 64 Vict,
c 12, s 128), enacted in 1900.

2 (UK), 22 & 23 Geo V, c 4, reprinted in RSC 1985, App II, No 27.
3 The term dominion, at that time, was used to refer to the more independent of the

British colonies. It has now fallen out of use.

958 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

ing to the Constitution Act, 1982, some of the issues and events surround-
ing the Meech Lake Accordthe initial excitement and the disappoint-
ment of its defeatand the broad consultation and inclusiveness of the
Charlottetown Accord, which could not overcome its own weight. I will
mention, as well, some of the oft-forgotten constitutional amendments
that were attempted in the intervening years, some of which succeeded
and some of which did not. I see the final two decades of the last century
as part of one story.

A. Forces for Change

Before I begin, I would like to recall briefly the years leading up to the
patriation of the constitution in 1982. The themes raised during those
years remain central to our understanding of ourselves as Canadians.

The 1960s were a time of excitement and change. Canada was cele-
brating its centennial year in 1967, and pride in Canada was at a high
point. That was the year of Expo 67 in Montreal. It was time for Canadi-
ans to take ownership of their own constitution.
At the same time, Quebec nationalism was on the rise, and some
groups of militants were beginning to emerge. The October Crisis in 1970
was a serious shock to Canadians. To most Canadians, the kidnapping of
a British diplomat, the kidnapping and murder of a Quebec cabinet minis-
ter, and the invocation of the War Measures Act4 seemed totally alien. An-
other major event occurred in November 1976, when the Parti Qubcois,
a party committed at the time to taking Quebec out of Canada as we know
it and proposing a new sovereignty-association arrangement, was voted
into power under its popular leader, Premier Ren Lvesque.

Language issues had already taken on a new prominence. A Royal
Commission on Bilingualism and Biculturalism had made strong recom-
mendations in 1967 to enhance the equality of both official languages and
to provide language protections.5 Pierre Elliott Trudeau, prime minister
from the end of the 1960s almost continuously until the early 1980s, him-
self perfectly bilingual, had a vision of a Canada in which both French and
English could flourish across the whole country.

4 RSC 1970, c W-2, as repealed by Emergencies Act, RSC 1985, c 22 (4th Supp), s 80. Per-
haps as an omen of what was to come, one of my first assignments in the Legislation
Section of the Department of Justice was advising on the regulations made under this
act.

5 Canada, Report of the Royal Commission on Bilingualism and Biculturalism (Ottawa:

Queens Printer, 1967) (Chairs: A Davidson Dunton & Andr Laurendeau).

 MAKING CONSTITUTIONAL HISTORY 959

Human rights in general became a preoccupation in the 1960s in Can-
ada, as elsewhere. The Parliament of Canada had enacted the Canadian
Bill of Rights6 in 1960 under Prime Minister John Diefenbaker but, as an
ordinary statute, it was not having as great an impact in the courts as leg-
islators had hoped. Prime Minister Trudeau, who was very much an advo-
cate of individual rights in the traditional liberal mould, became a strong
advocate of an entrenched bill of rights, and this objective remained con-
stant from the late 1960s through to the achievement of the constitutional
package that became the Constitution Act, 1982.
There were several lengthy periods of intense federal-provincial con-

stitutional negotiation, involving a range of proposals, between 1967 and
1980, but all ultimately ended in failure. Several different amending for-
mulas were explored, as well as the possibility of establishing an en-
trenched bill of rights.

In 1978, the federal government gave up trying to achieve agreement
and took another approach. It published a white paper entitled A Time for
Action, putting forward a plan for the federal government, as a first step,
to go ahead with constitutional renewal in areas of federal jurisdiction,
where agreement would not be necessary with the provinces.7 This too
failed, when the Supreme Court found that the federal governments Bill
C-60 had overstepped its jurisdiction when it attempted to replace the
Senate with a new institution called the House of the Federation.8

II. The Constitution Act, 1982

A. Moving Forward

There was then a brief lull in constitutional activity, followed in 1980
by the first of two referendums held in Quebec on the matter of Quebecs
independence. Despite the popularity of the Quebec leader, Ren L-
vesque, the referendum resulted in a vote of 59.6 per cent9 in favour of
Canadian federalism and against embarking on a process that would lead
to sovereignty-association. Late in the process, Prime Minister Trudeau,
who had recently been re-elected after a short period out of office, weighed

6 SC 1960, c 44, reprinted in RSC 1985, App III.
7 The Right Honourable Pierre Elliott Trudeau, A Time for Action: Toward the Renewal

of the Canadian Federation (Ottawa: Minister of Supply and Services Canada, 1978).

8 Reference Re Authority of Parliament in Relation to the Upper House (1979), [1980] 1

SCR 54, (sub nom Reference Re Legislative Authority of Parliament) 102 DLR (3d) 1.

9 Referendums, online: Le Directeur gnral des lections du Qubec .

960 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

in with his contrasting image of a strong Canada. He undertook to press
ahead with constitutional change. Over the summer of 1980, the Govern-
ment of Canada embarked on yet another intense period of federal-
provincial consultations in an attempt to reach an agreement. Yet again,
no agreement was reached.
Once again, the federal government proposed to act unilaterally. Ap-
parently despairing of ever reaching an agreement with the provinces,
Prime Minister Trudeau boldly proposed to go over the heads of the pro-
vincial politicians to present the people of Canada with a peoples pack-
age that included, among several other elements, a charter of rights and
freedoms and an amending formula to provide for all future constitutional
amendments to be made in Canada. The package contemplated the possi-
bility of a referendum as a deadlock-breaking mechanism if the Senate
and House of Commons had approved an amendment and there was in-
sufficient approval by the provincial bodies within a year. Prime Minister
Trudeau proposed to take this package directly to the UK Parliament
without involving the provinces at all.

It was at this point that I became directly involved in the constitution-
al files. The draft that was tabled in Parliament in October 1980 was
based on the proposals that had been put before the provincial represent-
atives in the summer of that year, and I was asked to prepare the draft
resolution and address any editorial adjustments that might be necessary.

B. The Special Joint Committee

A special joint committee was established to consider the proposed
amendments, and it was through this process that the proposals truly be-
came a peoples package. Representations were heard from a wide variety
of groups and resulted in many amendments to what was to become the
Charter. Perhaps of most significance was the fact that the proceedings of
the committee were, as a result of the insistence of the leader of the Oppo-
sition, the Honourable Joe Clark, televised for the first time ever. Many
Canadians watched the proceedings, and this generated a sense of ex-
citement around the changes being proposed, which gave the package ad-
ditional legitimacy.

I prepared amendments to the package to incorporate the changes
that the government was willing to accept from among the many pro-
posals made by witnesses appearing before the parliamentary committee.
At the same time, I had the chance to make a significant number of edito-
rial improvements to the drafts. A comprehensive document including
these changes was tabled by Jean Chrtien, then minister of justice, in
February of 1981.

 MAKING CONSTITUTIONAL HISTORY 961

I cannot overstate the breadth and significance of the changes that
were made over the course of the several months during which the pro-
posals were being discussed and considered. Many of the fundamental
rights and freedoms set out in the Charter were significantly strength-
ened.10 As well, a number of new provisions were added to the Charter.
These additions included an enforcement section (section 24), a new para-
graph in the language rights provisions to include children of parents who
received their primary-school education in the province involved (section
23), and interpretive provisions to protect multicultural heritage and de-
nominational schools (sections 27 and 29).

Several significant additions were also made to other parts of the con-
stitutional package. A new part II was added to recognize and affirm the
Aboriginal and treaty rights of the Aboriginal peoples of Canada.11 As
well, section 92A was inserted into the British North America Act, 1867 to
give provincial legislatures express powers over certain resources.12
Among the numerous editorial adjustments I made to the package was
the removal of all pronouns to avoid the then controversial use of the pro-
noun he to cover both men and women. So as not to raise issues of com-
parisons of usages between this fundamental constitutional document and
our statutes, and particularly since a revision of the federal statutes that
used the pronoun he alone was well advanced, I thought it best to avoid
the issue by restructuring the provision or repeating the noun. This was
accomplished fairly easily, although there are several provisions in the
Charter that may look a little strained.13 I followed this same approach in
a number of federal statutes I drafted during this period, including the
Access to Information Act, the Privacy Act, and the Official Languages
Act.14

The changes tabled in February 1981 were by and large accepted by
Parliament, and there were several more added before the package was
finally approved. These later alterations included a change of the amend-
ing formula that would apply to part II (Aboriginal and treaty rights); the

10 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. I mention in particular
sections 1, 3, 8, 9, 11, 13, and 15 of the Charter.

11 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
12 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, as
amended by Constitution Act, 1982, supra note 11, s 50. The schedule to the Constitu-
tion Act, 1982 renamed the British North America Act, 1867 as the Constitution Act,
1867.

13 See e.g. Charter, supra note 10, ss 11(c), 13.
14 Access to Information Act, RSC 1985, c A-1; Privacy Act, RSC 1985, c P-21; Official Lan-

guages Act, RSC 1985, c 31 (4th Supp).

962 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

addition of section 28, intended to give supremacy to equality rights; and
a preamble recognizing the supremacy of God and the rule of law.

The provinces were not prepared to let the federal government proceed
directly to the UK Parliament with the unilateral package without a court
challenge. Three actions were initiated at the provincial level, and these
were referred on to the Supreme Court of Canada. The Supreme Court
came out with its nuanced decision in October 1981. The Court found that
it would be legal for the federal government to go alone to the United
Kingdom but that to do so ran against constitutional convention. Consti-
tutional convention dictated that a substantial degree of provincial con-
sent is required.15 The Court declined to set a specific formula but left it
to the political actors to determine the degree of provincial consent re-
quired. This left all parties prepared to have one last try at reaching a
consensus.

C. The November Conference

The first ministers conference that took place from November 3 to 5,
1981, was one of high drama. It was the first one that I was to experience
as a participant. I did not sit with the other officials behind the first min-
isters for this conference but was relegated to a small room on the fifth
floor of the Government of Canada Conference Centre, formerly Ottawas
railway station, far above the first floor where the discussions were taking
place, to wait for instructions to draft. None came for two days. In fact
November 3 and 4 were so quiet for me that I was working on other files.
That was to change.
On November 4, at the end of the afternoon, I was called to a meeting
with the deputy minister of justice, Roger Tass. There, I was given in-
structions to prepare a new draft that would allow for a referendum on
the Charter, as well as a referendum to choose an amending formula.
These measures were in addition to the deadlock-breaking referendum
procedure within the federal proposed amending formula that I men-
tioned earlier. The new proposal, I was to learn later, was issued as a
challenge by Prime Minister Trudeau during the discussions that day.
Premier Ren Lvesque had accepted the challenge. I was to draft the
changes and take the revised draft to a meeting at 8:00 a.m the next day.
Right after the meeting with the deputy minister, I went to my own of-
fice to prepare the draft for the next morning along with my secretary. I

15 Reference Re Resolution to Amend the Constitution, [1981] 1 SCR 753 at 904-905, (sub
nom Reference Re Amendment of the Constitution of Canada (Nos 1, 2 and 3)) 125 DLR
(3d) 1 [Patriation Reference].

 MAKING CONSTITUTIONAL HISTORY 963

do not remember even stopping for dinner, although I think someone
must have brought me something to eat while I worked.
We always had a number of what we called hip pocket drafts ready,
covering a number of possible policy changes that we could foresee. I ac-
tually had a hip pocket draft for the Charter referendum provision, so I
had only to make a slight adjustment to that draft to exclude the lan-
guage protections from the referendum provision.

I had no hip pocket draft, however, for the referendum to choose the
amending formula. Most of my time was spent trying to develop that pro-
posal and to fit it into the existing draft. The federal proposal that had
been tabled for the conference already included a referendum procedure
within the amending formula itself, but the new proposal was to create a
referendum procedure to determine what the amending formula was to
be.

Then, it was necessary to wait to ensure that the French version cor-
responded appropriately with the English version. I always worked with a
French-speaking counterpart, who prepared the French versions of the
drafts. We worked, as much as possible, simultaneously on the English
and French versions, although in every file, one or the other would take
the lead. I had the lead on the constitutional files.

Finally, a number of copies of each version had to be made. It took me
the entire night to complete the draft. The sun was coming up when I
headed for home. Once home, I decided that a short nap would be worse
than none, so I settled for a shower and breakfast before heading out for
my 8:00 a.m. meeting.

D. November 5: Consensus Reached

On my arrival at that meeting, I was informed without ceremony that
the numerous copies of the draft that I had carried in were no longer
needed and that there was a new proposal to be drafted. For a number of
years, I wondered if others had simply neglected to tell me earlier that
plans had changed. If they had let me know, I would have got some sleep
before embarking on the final package. I have since realized that a final
decision was not taken by the prime minister on this new proposal until
that morning, not long before my 8:00 a.m. meeting. The fact of the mat-
ter is that the situation was very volatile and uncertain, and the outcome
could have gone in a number of different directions.
Reports indicated that the new deal was constructed during what has
come to be known as the Kitchen Accord, resulting from a meeting be-
tween Jean Chrtien, the minister of justice and Attorney General of
Canada; Premier Roy Romanow of Saskatchewan; and Roy McMurtry, At-
torney General of Ontario. From what I have subsequently surmised from

964 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

speaking with various central actors in the process, the matter was dis-
cussed through the night of November 4 to 5 by most, if not all, delega-
tions, with the unfortunate exception of Quebec. This night has become
known, rather dramatically and perhaps unfairly, as The Night of the
Long Knives.
It appears that the proposal that was presented to the prime minister

not long before 8:00 a.m., while reflecting the direction of the Kitchen Ac-
cord, may have been adjusted in its detail over the hours of that long
night. I can only surmise that the shape of the accord was the result of a
gradual consensus that included most of the provincial delegations, prob-
ably over a good portion of the conference, and a final push over the even-
ing of November 4, and the early morning of November 5, 1981.

There were several major changes in this new agreement. The general
amending formula that had been proposed by the federal government re-
quired approvals from four regions of Canadathe West, the East, Ontar-
io, and Quebec. It was based on a formula known as the Victoria Formu-
la, which had achieved federal-provincial consensus at a 1971 conference
held in Victoria, but which ultimately failed due to a change of heart of
the Quebec government after their delegation had returned home.

The federal proposal was replaced by a general amending formula,
based on the principle of the equality of the provinces, that had been
agreed to earlier in the spring of that year by the premiers of eight prov-
inces. This group came to be known as the Gang of Eight and included
all but Ontario and New Brunswick. The new amending formula required
the approval of the Senate and House of Commons and the legislative as-
semblies of any seven provinces. Some recognition of population was re-
flected in the requirement that the seven approving provinces must in-
clude fifty per cent of the population of Canada.16

This formula also included a power for provinces to opt out of any
amendment where provincial powers, rights, or privileges were to be af-
fected. The original Gang of Eight proposal also provided that, where the
amendment related to education or other cultural matters, compensation
was to be paid by the Government of Canada to any province that had
opted out of the amendment. The compensation provision was initially left
out of the draft on November 5 but shortly afterwards found its way back

16 There were a total of five procedures, including: the general amending formula; a una-
nimity procedure for certain amendments considered to be central to the federation as a
whole; a bilateral or multilateral procedure for amendments that related to one or more,
but not all, of the provinces; and separate unilateral procedures for the provincial and
federal governments for amendments of internal concern only: see Constitution Act,
1982, supra note 11, part V, ss 38 to 49.

 MAKING CONSTITUTIONAL HISTORY 965

in.17 This aspect of the amending formula would have been of significance
to Quebec in particular.
As already mentioned, I was briefed, along with other federal officials,
at 8:00 a.m., on the proposed changes that had been accepted by Prime
Minister Trudeau. I headed over to the little room on the fifth floor of the
Government of Canada Conference Centre to adjust the draft package,
along with the drafter for the French version, Grard Bertrand; our two
secretaries; and two constitutional experts from the Department of Jus-
tice. Sometime in the middle of the morning, while we raced to complete
the detailed drafting, the first ministers, with the exception of Quebecs
premier, were signing the formal agreement before the television camer-
as.
Before going further, I should describe the drafting process at the
time. In 1981, we were still using typewriters. Our method of reproduc-
tion was photocopying. Our drafts were prepared on legal-size paper, and
when we adjusted our drafts, our secretaries prepared strips of paper con-
taining the changes, which they then Scotch-taped over the changed pro-
vision. Sometimes the pages got quite thick, until we could no longer work
with them, at which point a new page was created. This led to draft pack-
ages with pages of unequal thicknesses and unequal lengths. A few years
later we moved to computers.
Agreement to the 7/50 amending formula was something of a shock
to me. Having been assured that the federal government would never ac-
cept this proposal of the Gang of Eight, I had spent no time at all consid-
ering it and certainly had no hip pocket draft. All I could do was make the
editorial adjustments to the Gang of Eight draft that seemed to be desira-
ble and fit the new formula into the existing draft. When we found some-
thing in the draft to be ambiguous, there was no one to consult in order to
determine the intent of the provision and no time to spare. I remember in
particular puzzling over the interpretation of the amending formula in re-
lation to the Supreme Court, since the Court itself is not entrenched in
the constitution. I spent most of the morning on the amending formula.
A second very significant change, although no problem to draft, was
the deletion altogether of the Aboriginal-rights part of the package. All
that replaced it was a new provision mandating a constitutional confer-
ence that would address matters directly affecting the Aboriginal peoples

17 It is reflected in subsection 38(3) and section 40 of the Constitution Act, 1982 (ibid).

966 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

of Canada.18 This was not, however, the end of the matter, and I will come
back to this issue.

There were several relatively minor adjustments to the Charter. At
the November conference, there had been little, if any, discussion of the
contents of the Charter. There appeared to be little appetite to retreat
from the advances that had been made during the deliberations of the
special joint committee early in the year. Rather, the controversy centred
around whether to have an entrenched charter at all.
The major change to the Charter was the addition of the notwith-
standing clause, now section 33 of the Charter, providing for a legislative
override of the sections dealing with fundamental freedoms and legal
rights. This override was limited to five years. I had several hip pocket
drafts for an override clause, so I was able to draft this change fairly
quickly. I note that the democratic rights, and more notably the language
provisionsincluding those relating to the status and use of the two offi-
cial languages of Canada19 and the minority language educational rights
of Canadian citizens20were excluded from the override. The language
rights, in particular, were very important to Prime Minister Trudeau.

The override clause was the essential compromise to address the dif-
ference of opinion between those who believed Parliament should be su-
preme and those who believed the courts should have the last say. From
all reports, this was a very bitter compromise for Prime Minister Tru-
deau. He would no doubt be pleased to know that Parliament has not, to
this date, employed the override.
Other changes related to section 6 of the Charter, allowing an excep-
tion to the mobility rights for affirmative action programs, and to section
23, extending minority language education rights to include all provinces.

Finally, proposals relating to equalization and regional disparities,
and to resources, were to be included in the package, as well as the consti-
tutional conference for the Aboriginal peoples of Canada.

E. The Afternoon Meeting

Once the draft was completed, in the early afternoon, it was copied
and distributed to be considered by a small group of ministers and senior
officials. They met around a large, round table in a room on the fourth

18 See ibid, part IV, as repealed by Constitution Amendment Proclamation, 1983, pro-

claimed in force 11 July 1984, SI/84-102, SC 1984, vol I.

19 Charter, supra note 10, ss 16-22.
20 Ibid, s 23.

 MAKING CONSTITUTIONAL HISTORY 967

floor of the conference centre at a meeting chaired by the then minister of
justice, Jean Chrtien. All provinces were represented except Quebec,
whose delegation had left the conference when Premier Lvesque rejected
the proposal that morning.

The vetting of the draft took several hours. As explanations were giv-
en and decisions were made about changes to the English version, I would
draft them on my copy and send the relevant page or pages up a set of
back stairs to our fifth-floor drafting room. There, my secretary made the
changes using the system I have already described of pasting strips onto
the legal-size pages. Once the parallel French version was prepared, the
changes were sent back down to the fourth-floor conference room for final
approval.
My recollection is that the adjustments were all made and agreed to
around five oclock in the evening. The final drafts were photocopied on
machines that were in a hallway open to the participants, and I recall
some difficulty managing that process as some of the delegates, anxious to
make their flights, crowded around the photocopier to get the first copies
off the machine.

F. After the Conference

This was not the end of the process. The participants left the confer-
ence with the understanding that they could contact us over the next few
weeks to discuss any technical adjustments they might have to suggest.
The phone lines were busy over those weeks, and a few technical changes
were made.
More interesting were the substantive changes that were made. Pres-
sure was brought to bear, notably by Ed Broadbent, then leader of the
New Democratic Party in Ottawa, and Premier Roy Romanow of Sas-
katchewan, to reinsert into the package the clause recognizing Aboriginal
and treaty rights. That clause had been a late addition to the package
that had been approved by Parliament in the spring of 1981. Aboriginal
communities in Canada had made strong representations both at home
and in the United Kingdom, and these efforts were ultimately successful
in receiving the support of Parliament. The clause was reinstated and be-
came section 35 of the Constitution Act, 1982, outside the Charter, in its
own part II.

The concern on the part of some of the provincial leaders regarding
the provision for Aboriginal and treaty rights was not irrational. It was
very unclear at the time what scope this provision would be given. As a
result, it was drafted cautiously, not in terms of adding to the rights of the
Aboriginal peoples but as a recognition and affirmation of those rights.

968 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

The controversial addition of the word existing to define the rights was a
result of this uncertainty.
As mentioned earlier, a new section 40 was added at this time to the
amendment procedures, providing for compensation to provinces that opt-
ed out of any constitutional amendments transferring provincial legisla-
tive powers to the federal government in the area of education or cultural
matters.

In an attempt to get Quebecs support for the package, the minority
language schooling rightto have ones children educated in ones mother
tonguewas suspended for Quebec until the legislative assembly or gov-
ernment of that province authorized a proclamation to bring it into force.21
No such proclamation has been made to date. A similar proposal for Man-
itoba failed to receive the necessary support.

The final change was the removal of section 28 from the scope of sec-
tion 33, the notwithstanding clause, meaning that governments could not
override the extra guarantee of equality between the sexes that womens
groups had lobbied for and won during the deliberations of the special
joint committee.

There was some dispute during the drafting meeting that took place in
the afternoon of November 5 as to whether the first ministers had intend-
ed to exclude section 28 from the override under section 33. My drafting
instructions had been to include it, and it was left unchanged following
the discussion on November 5.

The effect of section 28 itself is somewhat unclear and gave me some
difficulty when it was first proposed to the special joint committee. It ap-
pears to add little to section 15, the general equality section of the Char-
ter, which expressly includes sex as one of its elements, but there is one
significant difference. Section 28 appears to override even section 1 of the
Charter, the section that limits all other rights and freedoms by making
them subject to such reasonable limits prescribed by law as can be de-
monstrably justified in a free and democratic society. This seemed to me
to go too far, and I was surprised that the politicians agreed to it. Interest-
ingly, the courts have rarely relied on section 28.

The inclusion of section 28 in the section 33 override would have been
equally puzzling. Section 28 provides that this extra guarantee of equality
is to apply notwithstanding anything else in the Charter. Section 33 pro-
vides that the override applies notwithstanding anything else in the

21 This exception for Quebec is well hidden in section 59, near the end of the Constitution

Act, 1982 (supra note 11).

 MAKING CONSTITUTIONAL HISTORY 969

Charter. Which notwithstanding provision would have trumped the other
was, to say the least, unclear.

Two issuesthe reinstatement of the Aboriginal and treaty rights,
and the exclusion of section 28 from the overridebecame linked, and
both appeared to have been agreed to as a result of the consultations that
took place after the November conference, particularly with members of
the New Democratic Party. However, my experience was that the fate of
section 28 was not finally decided until the very last minute.
On the morning of November 18, the day that Prime Minister Tru-
deau held a press conference to release the final package that was to be
tabled in Parliament and then sent to London, I received a phone call in-
forming me that it was still uncertain whether or not section 28 was to be
included among the sections that could be overridden by section 33.

I was instructed to go immediately to the National Printing Bureau in
Hull along with Grard Bertrand, who was working on the French ver-
sion, to manage the preparation of two alternative versions of section 33,
one including section 28 and one excluding it, so that the appropriate ver-
sion would be ready when the final decision was taken. Word on the deci-
sion only came to us with about half an hour to spare before Prime Minis-
ter Trudeaus press conference was to take place. The timing was so tight
that I had to leave the printing bureau before all the copies that were
needed were made, and I sped over to the press gallery with half of them,
to arrive just as the prime minister was arriving. Grard followed some
minutes later with the rest of the copies.

The House of Commons passed a resolution approving the constitu-
tional package on December 2, the Senate followed suit on December 8,
and the package was duly sent on to London for enactment.

G. The UK Parliament

I can report that, even after the package went to the United Kingdom,
there were a few small changes requested by British advisors before the
amendment could be made. Perhaps the most significant was the insist-
ence by British advisors that the title of the act be changed to refer to
1982, the date on which it was passed in the United Kingdom, rather than
1981, when it was approved in Canada.

To my embarrassment, they also suggested that a change had to be
made as a result of a grammatical error in sections 54 and 59. I had used
an adjectival form in the phrase consequential upon, rather than the
more proper adverbial form in the phrase consequentially upon. There
were several other very small editorial adjustments made to punctuation.
Despite some previous concerns about how difficult it would be to have
this legislation passed in the United Kingdom, the package passed easily

970 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

in the House of Commons on March 8, 1982, and unanimously in the
House of Lords on March 25, 1982. It was proclaimed in Canada by the
Queen on April 17, 1982.

H. Final Comments

By the end of the process, nine premiers and the prime minister had
signed on to the package proposed by the prime minister, but some signif-
icant changes had taken place since he had first presented it to the prem-
iers in November 1981.

The premier of Quebec had left in anger without signing. This was to
affect federal-provincial relations for decades to come. The Government of
Quebec turned inward and significantly limited its relations with the rest
of Canada until 1986, when a new round of negotiations, dedicated to
Quebecs proposals, commenced.
The characterization of the events of the night of November 4, 1981,
remains to this day a matter of deep disagreement. Did Premier Lvesque
precipitate the exclusion of the Quebec delegation from the last minute
negotiations by breaking with the Gang of Eight on the amending formu-
la? Was the exclusion deliberate? Would a government dedicated to sepa-
rating from Canada ever have signed on to an agreement to patriate the
constitution of Canada? I do not know where the truth lies, but I cannot
point to what in the patriation package might have been a deal breaker
for Quebec. In any event, Quebec withdrew from further constitutional
discussions and refused to accept the legitimacy of the Constitution Act,
1982.

The constitutional changes that were achieved were far-reaching and
profound. They were the result of many years of discussion. In the end,
negotiations were very fluid: there was no guarantee that a deal would be
struck, and despite the broad public involvement during the deliberations
of the special joint committee, the final resolution was made in the ab-
sence of public scrutiny and away from the formal bargaining table. The
negotiations related to the amending formula, the Charter, and Aboriginal
rights.

I believe that governments finally succeeded in coming to an agree-
ment on the package to patriate the constitution because it was in every-
ones interest to do so. It appeared that Prime Minister Trudeau would
have gone directly to the United Kingdom had the provinces not been able
to come to an agreement, which would have left the provinces unable to
influence the final outcome. Prime Minister Trudeau would likely have
received the support of the United Kingdom, because the Supreme Court
had found that it would have been legal for the federal government to act
unilaterally. This unilateral patriation would, at the same time, have

 MAKING CONSTITUTIONAL HISTORY 971

been a far less desirable outcome for the federal government. Without the
substantial provincial agreement required to satisfy constitutional con-
vention,22 the patriation package would have been tainted by a cloud of il-
legitimacy.

In this connection, I should mention the Quebec Veto Reference of
1982, in which the Government of Quebec claimed that its consent was
necessary to meet the requirement for substantial provincial agreement.23
Quebec based its claim on the fact that it was the only province whose
population was primarily French-speaking and on the fact that it included
at the time over twenty-five per cent of the population of Canada. The Su-
preme Court of Canada found against the Quebec position, thus removing
any suggestion that the patriation of the constitution was either legally or
conventionally unconstitutional.

III. After Patriation

There were three changes of enormous import made in the Constitu-
tion Act, 1982. They were the entrenchment of the Charter, the recogni-
tion of Aboriginal and treaty rights of the Aboriginal peoples of Canada,
and the establishment of a comprehensive amending procedure within
Canada. All three of these areas, as we have seen, were not settled until
the end of the long negotiation process. Each area underwent significant
last-minute changes. I will take a look at some of the early ramifications
of each of these three changes.

A. The Canadian Charter of Rights and Freedoms

Despite the widespread concern about changing the balance of power
between Parliament and the courts, an issue that still stirs some contro-
versy, individual Canadians very quickly took ownership of the Charter. It
has become a symbol of pride and a source of identification for Canadians.
It is now quite unimaginable not to have a charter of rights and freedoms.

The years in the mid-1980s that followed the patriation of the consti-
tution were years of consolidation under Canadas new legal rules. Feder-
al and provincial laws were amended to comply with the Charter. There
was an increasing focus on minority rights in general and minority lan-
guage issues in particular.

22 See Patriation Reference, supra note 15.
23 Reference Re Objection to a Resolution to Amend the Constitution, [1982] 2 SCR 793,

(sub nom Reference Re AG Quebec and AG Ontario) 140 DLR (3d) 385.

972 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

The federal government embarked upon two initiatives to implement
the new Charter. An omnibus bill was undertaken to amend all of the
provisions in federal legislation that would offend the new Charter.24 De-
termining what amendments might be necessary was challenging. This
was particularly true in relation to the equality provisions found in sec-
tion 15 of the Charter. In recognition of the need for a delay, the Charter
itself provided for a three-year period before section 15 came into force.

The second initiative was a thorough revision of the federal Official
Languages Act, which reflected the expanded status of French and Eng-
lish as official languages under the constitution.25 The bill was introduced
into Parliament on June 25, 1987, and proclaimed in force on September
15, 1988. The Meech Lake Accord, which was being considered at the
same time as the Official Languages Act, had some effect on the language
in that legislation.

Procedures were set up within the federal government to ensure that
all legislation would meet the requirements of the Charter. In my own
drafting branch, every bill had to be accompanied by a certification by the
drafter that there were no Charter problems. This was no easy task in the
early days before there were any Supreme Court decisions to follow. A
new human rights section was created within the Department of Justice
to provide advice on the Charter. Before long, cabinet documents contain-
ing proposals for legislation had to include a separate part addressing
Charter implications.

B. The Aboriginal Peoples of Canada

The recognition and affirmation of the Aboriginal and treaty rights of
the Aboriginal peoples of Canada has also had an enormous impact. No
one knew what the courts would do with section 35. Some may have
thought it would change little. As it has turned out, the courts have given
section 35 a broad and progressive interpretation, and its impact contin-
ues to unfold.
The Constitution Act, 1982 also provided for an additional constitu-
tional conference that would address matters affecting the Aboriginal
peoples of Canada and would include their representatives as partici-
pants. It was to be held within one year of the Constitution Act, 1982 com-
ing into force. This was the beginning of an intense period, between 1983
and 1987, that included a total of four formal first ministers conferences

24 The resulting act was assented to on June 28, 1985, as the Statute Law (Canadian

Charter of Rights and Freedoms) Amendment Act (SC 1985, c 26).

25 Supra note 14.

 MAKING CONSTITUTIONAL HISTORY 973

at which representatives of the Aboriginal peoples were present, three of
which were constitutionally mandated. Each of these conferences was
preceded by varying numbers of officials and ministers meetings that
were devoted exclusively to Aboriginal interests.
Only the very first of these conferences resulted in amendments to the
constitution.26 These amendments added two important clarifications to
section 35that new land claims agreements would qualify as treaty
rights and that Aboriginal and treaty rights were guaranteed equally to
male and female persons. The amendments also added a statement of the
principle27 that representatives of the Aboriginal peoples of Canada be in-
vited to participate in discussions at a constitutional conference before
any amendment is made to a provision in the constitution that relates to
the Aboriginal peoples of Canada. The commitment to at least two addi-
tional constitutional conferences within five years of the Constitution Act,
1982 coming into force was included in the 1984 amendment as well.28

These amendments were made under the general amending formula,
receiving the support of the federal government and the governments of
all the provinces except Quebec. These have been the only amendments
achieved under the 7/50 formula since patriation.

The remaining three Aboriginal constitutional conferences focused, in
increasing detail, on establishing a framework for self-government ar-
rangements. None of these was successful, but an agreement on an
amendment appeared, to some of us, to be in sight during the fourth con-
stitutional conference, which was held in February 1987.
During this period, significant legislative activity took place in the ar-
ea of Aboriginal rights, independently of the constitutional negotiations. I
was asked to draft legislation that would establish a framework for self-
government for bands or other communities that met the conditions set
out in the legislation. The proposed Indian Self-Government Act was in-

26 Constitution Amendment Proclamation, 1983, supra note 18. This is the only amend-
ment that includes the erroneous reference to the proclamation in its title. I plead inno-
cent, since I was out of town on the critical day when the printing of the package was fi-
nalized. The error was compounded by a reference to the year prior to the actual year of
proclamation. I hasten to add that every amendment since then has followed the more
appropriate designation Constitution Amendment.

27 See Constitution Act, 1982, supra note 11, s 35.1. I confess to a spelling mistake in this
provision. It was drafted late at night, and neither I nor anyone else, at the time, no-
ticed that I had used the improper spelling principal in this provision. That spelling
survived in consolidations for a number of years but was, at one point, quietly corrected.
28 Constitution Amendment Proclamation, 1983, supra note 18, s 4 (Part IV.1 of the Con-
stitution Act, 1982 (supra note 11), which included this commitment, was automatically
repealed on April 18, 1987).

974 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

troduced as Bill C-52 at the end of June 1984 but went no further due to
the election held over that summer. I drafted two other initiatives that did
pass. The first, introduced as Bill C-31, addressed the inequitable treat-
ment of women and certain others under the Indian Act and also gave In-
dian band councils new bylaw powers.29 The second, the Sechelt Indian
Band Self-Government Act, was the first piece of federal legislation to es-
tablish a measure of self-government for a specific Aboriginal group inde-
pendently of a land claim settlement.30

C. Applying the New Amending Procedures

The establishment of our amending procedures in 1982 was long over-
due and symbolically important. It was the final realization of many at-
tempts, going back to Confederation itself, at a consensus that had con-
tinued to elude us. It did not take long to put the new amending proce-
dures to use. I have just discussed the successful Aboriginal amendments
of 1984. I will later discuss the less successful Meech Lake and Charlotte-
town Accords. Before I do so, however, I will pause to consider some of the
other proposals for constitutional amendments that have been considered
since 1982.
Between 1984 and 2001, a period covering less than twenty years, a
total of ten constitutional amendments were proclaimed. One of these ten,
the Aboriginal amendments just mentioned, was under the general 7/50
formula in section 38 of the Constitution Act, 1982, seven were under the
bilateral or multilateral formula in section 43 of that act, and two were
amendments made by Parliament acting alone under section 44 of that
act.31

Following soon after patriation, there were a variety of proposals that
were circulated among the jurisdictions but that were not pursued to frui-
tion. Several provinces that had advocated the inclusion of protections for
property rights in the Charter floated proposals along the same lines, but
these were not extensively discussed. There was some consideration of an
amendment to include language rights for Ontario similar to those al-
ready included in the Charter for New Brunswick. We also took another

29 This bill became An Act to amend the Indian Act, RSC 1985, c 32 (1st Supp).
30 SC 1986, c 27.
31 The two federal unilateral amendments were the Constitution Act, 1985 (Representa-
tion) (being Part I of the Representation Act, 1985, SC 1986, c 8), which amended section
51 of the Constitution Act, 1867 (supra note 12) to readjust the representation in the
House of Commons; and the Constitution Act, 1999 (Nunavut) (being Part 2 of An Act to
amend the Nunavut Act and the Constitution Act, 1867, SC 1998, c 15), which provided
for representation of Nunavut in the Senate and House of Commons, the latter through
another amendment to section 51 of the Constitution Act, 1867 (supra note 12).

 MAKING CONSTITUTIONAL HISTORY 975

look at some of the areas that had been developed during constitutional
negotiations held in the 1970s relating, for example, to administrative tri-
bunals and unified family courts, and considered several specific adjust-
ments to the amending formulas. None of these proposals resulted in a
constitutional amendment.
Before long, however, there were a number of amendments that were
more vigorously pursued. These amendments generally dealt with single
issues and were relatively straightforward. In each of these cases, it fell to
the federal government, and more specifically to me, to ensure that each
government whose legislative body was to authorize the amendment had
the identical resolution for tabling. In some cases, the provincial officials
relied on the federal level to prepare the first draft. In all cases, the pro-
vincial and federal officials worked together to come to a mutually ac-
ceptable final draft of the substantive provisions.

I worked with Manitoba to develop a bilateral constitutional amend-
ment proposal under section 43 of the Constitution Act, 1982 to address
the failure of that province to comply with its obligation under section 23
of the Manitoba Act, 1870 to enact its legislation in French as well as Eng-
lish.32 That amendment would have limited the potential need to translate
all existing acts into French but, at the same time, would have recognized
the equality of the French and English languages and made provision for
services to the public in both languages. This initiative was abandoned in
light of the reference to the Supreme Court of Canada, which determined
that all of Manitobas legislation was invalid and ordered all existing leg-
islation to be translated within a defined period of time.33

I also worked on two trilateral amendments to settle the boundaries
between two sets of Western provinces. These amendments were well-
developed and ready to go, but for reasons unknown to me, all went quiet,
and they were not pursued. I wondered if someone who thought that they
were important had simply retired.
Early in 1985, the Government of Canada proposed to limit the power
of the Senate by replacing the absolute veto that the Senate has over leg-
islation with a suspensive veto. The impetus for this initiative was an im-
passe in the Senate on a borrowing authority bill. The federal government
tabled a resolution, seeking a constitutional amendment, that was debat-
ed in the House of Commons. It appeared for a while that the requisite
seven provinces would support this amendment, but the initiative stalled

32 SC 1870, c 3, reprinted in RSC 1985, App II, No 8.
33 Reference Re Manitoba Language Rights, [1985] 1 SCR 721, (sub nom Reference Re

Language Rights under the Manitoba Act, 1870) 19 DLR (4th) 1.

976 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

when the Senate finally passed the legislation, and the support for the
amendments ebbed as provincial governments changed.

I worked with Newfoundland on a total of three amendments to term
17 of the Terms of Union of Newfoundland with Canada,34 all of which re-
sulted in bilateral amendments under section 43 of the Constitution Act,
1982. The first one, in 1987, added the Pentecostal Assemblies to the list
of seven religious denominations that had originally been given the right
to operate their own publicly funded schools when Newfoundland became
part of Canada in 1949.35

The second one, in 1997, was a halfway-compromise measure that at-
tempted to give the government powers to organize and administer public
education in Newfoundland while observing that the churches were to
continue to have a role in the schools.36 Although this proposal met with
substantial opposition, it was ultimately successful.37 This amendment
proved to be unworkable on a practical level and soon led to the third
schools amendment for Newfoundland, in 1998, which provided for a
single, publicly funded and publicly administered school system. This
amendment was clearer and more direct. It gave the Newfoundland legis-
lature exclusive authority over education but required that courses in re-
ligion be given, on the condition that they not be specific to a religious de-
nomination. It also allowed for religious observances in schools where re-
quested by parents.38
Quebec also proposed a constitutional amendment relating to schools
and, again, I worked with officials of that province to complete the bilat-
eral process. This amendment simply removed Quebec from section 93 of
the Constitution Act, 1867,39 thus eliminating any mention of denomina-
tional schools in relation to Quebec and leaving the Government of Que-
bec free to organize schools on the basis of language alone.

34 Being Schedule to the Newfoundland Act (UK), 12 & 13 Geo VI, c 22.
35 Constitution Amendment, 1987 (Newfoundland Act), proclaimed in force 20 January

1988, SI/88-11, SC 1988, vol I.

36 Constitution Amendment, 1997 (Newfoundland Act), proclaimed in force 2 May 1997,

SI/97-55, SC 1997, vol I.

37 This amendment did not get Senate approval, but this was not fatal because the Senate
only has a suspensive veto for constitutional amendments by virtue of section 47 of the
Constitution Act, 1982 (supra note 11). The House of Commons approved the amend-
ment a second time in accordance with that section. The only other time that this sec-
tion was used was for the Meech Lake Accord.

38 Constitution Amendment, 1998 (Newfoundland Act), proclaimed in force 14 January

1998, SI/98-25, SC 1998, vol I.

39 Constitution Amendment, 1997 (Quebec), proclaimed in force 22 December 1997, SI/97-

141, SC 1997, vol I.

 MAKING CONSTITUTIONAL HISTORY 977

Three more bilateral amendments have been adopted. New Brunswick
had proposed an amendment establishing equal status, rights, and privi-
leges for the English and French linguistic communities in New Bruns-
wick, which would have been included in a companion agreement to the
Meech Lake Accord had that initiative succeeded. I will come back to this
later. New Brunswick pursued that amendment after the failure of the
Meech Lake process, and it became the only provision from those discus-
sions to survive. It was adopted in 1993, as section 16.1 of the Charter.40

The proposal to build a bridge to Prince Edward Island resulted in the
need for an amendment to the schedule to the Prince Edward Island
Terms of Union41 to remove the requirement for the federal government to
maintain a ferry service to the island once the bridge was available, as
well as to allow for tolls and private operation of the bridge. The Govern-
ment of New Brunswick was very much interested in seeing the bridge
project go though, so it involved itself in the discussions leading to this
amendment, along with Prince Edward Island, even though it was not
necessary for New Brunswick to be involved in the bilateral amending
process. The amendment was proclaimed in force in 1994.42

The most recent amendment to the constitution was proclaimed in
2001. It changed the name of Newfoundland to Newfoundland and Labra-
dor.43

D. The French Version of the Constitution

Before leaving this part of my discussion, I will mention one signifi-
cant obligation under the Constitution Act, 1982 that has not yet been ful-
filled. Section 55 of the act, located among the technical amendments in
part VII, requires the minister of justice to prepare a French version of
the constitution as expeditiously as possible and then, when any por-
tion thereof sufficient to warrant action being taken has been so pre-
pared, it is to be put forward for enactment.

40 Constitution Amendment, 1993 (New Brunswick), proclaimed in force 7 April 1993,

SI/93-54, SC 1993, vol I.

41 SC 1873, ix, reprinted in RSC 1985, App II, No 12
42 Constitution Amendment, 1993 (Prince Edward Island), proclaimed in force 4 May
1994, SI/94-50, (1994) C Gaz II, 2021. This is the second case where the year in the cita-
tion of the amendment does not reflect the actual year it was proclaimed. This discrep-
ancy occurred because the resolution passed by the legislative assembly of Prince Ed-
ward Island showed the year 1993, instead of leaving the designation open using the
standard (year of proclamation) citation. In order for the resolutions to be identical, it
was necessary for the Senate and the House of Commons to follow suit.

43 Constitution Amendment, 2001 (Newfoundland and Labrador), proclaimed in force 6

December 2001, SI/2001-117, (2001) C Gaz II, 2899.

978 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

A committee, called the French Constitutional Drafting Committee,
was set up in 1984 to assist the minister of justice to prepare the drafts,
and the final report of the committee was tabled in both Houses of Par-
liament in December 1990.44 The report has been shared with the prov-
inces, some of which have, at one time or another, given detailed com-
ments. The Constitution Act, 1867 is one of the parts of the constitution
that has no official French version. All five of the amending procedures,
including the unanimity formula set out in section 41 of the Constitution
Act, 1982, would have to be engaged to enact a comprehensive French
version. Therefore, it was impossible to proceed further until Quebec re-
engaged in the constitutional talks.
Over the years, there have been further consultations with the prov-
inces on the French version prepared by the committee, but there appears
never to have been a broadly shared appetite at the political level to push
this initiative forward. I raised the matter, however, with every minister
of justice under whom I worked, beginning in 1986. This matter remains
outstanding.

IV. The Meech Lake Accord

Following patriation, Quebec withdrew from all formal involvement in
constitutional negotiations and stayed on the sidelines. The Government
of Quebec refused to recognize the validity of the constitutional amend-
ments that had taken place in 1982. Neither ministers from Quebec nor
the premier of Quebec attended the federal-provincial meetings that re-
lated to constitutional change. This approach did not necessarily extend to
senior Quebec public officials who did, for example, attend the Aboriginal
conferences of the early 1980s, at least as observers, but these officials
from Quebec lacked a mandate to take part.
As further evidence of its estrangement after patriation, the Govern-
ment of Quebec enacted legislation,45 assented to on June 23, 1982, that
systematically applied the section 33 Charter override to all its legislation.
The blanket override was not renewed when the five year limitation peri-
od set by section 33 ran out.

There were important changes at the political level beginning in 1984.
Prime Minister Trudeau resigned as leader of the Liberal Party and was
replaced by John Turner in June of 1984. There was a summer election,

44 Final Report of the French Constitutional Drafting Committee Responsible for Providing
the Minister of Justice of Canada with a Draft Official French Version of Certain Consti-
tution Enactments (Ottawa: Minister of Justice, 1990) (Chair: Jules Brire).

45 An Act respecting the Constitution Act, 1982, RSQ c L-4.2.

 MAKING CONSTITUTIONAL HISTORY 979

and a Progressive Conservative, Brian Mulroney, became prime minister
in September 1984. Little more than a year later, in December 1985, the
Parti Qubcois was, after almost ten years in government, replaced by
Robert Bourassas Liberal government. There were changes of govern-
ment in a number of the other provinces as well.
The constitutional negotiations known as the Quebec Round began

quietly, indeed secretly. The foundation was laid in May 1986 at a sympo-
sium at Mont Gabriel, Quebec, where the Quebec minister of intergov-
ernmental affairs confirmed Quebecs five conditions46 for acceptance of
the patriation package of 1982. The Government of Quebec was asking for
changes to the constitution that would have symbolic meaning but that it
felt would have minimal impact on the constitution for those outside Que-
bec. The changes would relate to Quebecs distinctiveness, immigration
agreements, the Supreme Court of Canada, the federal spending power,
and the amending formula. This relatively short list was in sharp contrast
to the much longer lists of demands that had been coming from Quebec in
recent years.47

The provincial premiers agreed, in August 1986 at a meeting in Ed-
monton, to make the issues identified by Quebec their first priority and to
set aside their other priorities until Quebecs demands had been ad-
dressed. Prime Minister Mulroney had written to them earlier in the
summer to request that they consider this approach.

In September 1986, I took on an additional role in relation to the con-
stitutional files. I became an assistant deputy minister responsible for the
Public Law Sector in the Department of Justice but, at the same time, re-
tained the drafting role for constitutional proposals. In the first week of
my new job, I had my first meeting with Senator Murray and Norman
Spector, his deputy minister, at what was then called the Federal and
Provincial Relations Office, and I was launched immediately into the
Quebec Round. The next week, I was in Iqaluit (then called Frobisher
Bay) for a senior officials meeting leading up to the fourth of the Aborigi-
nal meetings on the constitution. The next five years were to become the
most intense period of my career.

46 These five conditions were the same as had been set out in February 1985 in a Quebec
Liberal Party position paper, entitled Matriser lavenir, before that party came into
power: Parti liberal du Qubec, Commission politique, Matriser lavenir (Document de
travail), (Montreal: Parti libral du Qubec, 1985) at 49ff.

47 For example, the Parti Qubcois proposed twenty-two conditions in its Projet daccord
constitutionnelle in May 1985: Quebec, Projet daccord constitutionnelle: Propositions du
Gouvernement du Qubec (Quebec: Gouvernement du Qubec, 1985).

980 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Through the fall of 1986 and the winter of 1987, a series of bilateral
meetings took place out of the public eye, between Quebec representatives
and representatives of the other provinces, with Quebec representatives
reporting back to their federal counterparts. During this period, federal
officials began to work on draft amendments with their Quebec counter-
parts. As a rule, no paper was exchanged. I remember one meeting in
Quebec City in particular, when Quebec drafts were written on a black-
board and then immediately erased as I tried desperately to scribble down
the essence of their proposals for further consideration.
While the Government of Quebec was reaching out to the rest of Can-
ada through this process, at the same time it appeared to be doing every-
thing that it could to avoid what it would consider to be yet another hu-
miliation in the event of a public failure to achieve its modest set of condi-
tions.

A. An Agreement Reached

When all the governments met at Meech Lake on April 30, 1987, the
five conditions of Quebec had been well canvassed even though there had
only been one meeting of officials, held early in March.

I had prepared drafts to reflect each of Quebecs five conditions, along
with a number of hip pocket alternatives. We met at Wilson House, on
Meech Lake in Quebec, just north of Ottawa. The house was more like a
country retreat than a convention centre and had originated as just that.
It was often used at the time by the federal government for day-long re-
treats and continues to be used in that way.

The prime minister and premiers met around a table on the second
floor while the officials waited for further developments. The provincial of-
ficials were on the first level, where there was a living room with comfort-
able chairs and a fireplace, a kitchen, an adjoining room where food could
be laid out, and another large room with round tables for the use of the
delegations. The federal delegation was on the third level, where there
were several small rooms that were probably originally bedrooms. The on-
ly place to which everyone had access was the first level, where everyone
went, at some point, for something to eat.
The relative ease with which a deal was struck that evening came as a

surprise to me. I had thought that this would likely be just the beginning
of another long series of negotiations.

The main point of contention was the distinct society clause, and this
was the last component of the package to be agreed upon. Late in the
evening, I received a request from the second floor to look for a way to re-
package that clause to better balance the recognition of the distinct socie-
ty and the recognition of linguistic duality within Canadathe presence

 MAKING CONSTITUTIONAL HISTORY 981

of French-speaking Canadians and English-speaking Canadians through-
out Canada.48 The drafts that had been put before the premiers had set
out these two elements in separate subsections that were independent of
each other. This request resonated with me, and I happily rearranged the
section by putting both elements together in the first subsection of the
provision and adjusting the remaining provisions accordingly. To my de-
light, the draft was quickly accepted and the deal was struck.
Although the first ministers had before them detailed draft provisions
for most of the elements of the package, the Meech Lake Communiqu is-
sued that night contained only general descriptions of these various ele-
ments. The one exception was the distinct society clause. We did not want
to lose the consensus on this clause. It was to remain the most sensitive
part of the package through the three years of discussions that followed.

The agreement covered the five elements requested by Quebec, some
of them generalized to apply to all provinces either at or before the April
30 meeting at Meech Lake or in the months immediately following that
meeting, and there was a sixth element added at the April 30 meeting.
This addition was to entrench in the constitution a requirement for annu-
al first ministers conferences, which were to cover Senate reform and
fisheries roles and responsibilities, as well as for annual first ministers
conferences on the economy.

It was also agreed that, until the Senate amendments were achieved,
Senate appointments were to be made from lists provided by the provinc-
es, so long as they were acceptable to the federal government. Senate re-
form was a high priority for the Western provinces. In recognition that
this was intended to be the Quebec Round, detailed proposals for Senate
reform were not developed, but the interim arrangement was included in
the package. This procedure was to apply until comprehensive Senate
amendments were made.49

48 The redrafted subsection 2(1) (Government of Canada, Strengthening the Canadian
Federation: The Constitution Amendment, 1987 (np: Government of Canada, 1987) at
13 [Meech Lake Accord]) reads as follows:

2.(1) The Constitution of Canada shall be interpreted in a manner con-

sistent with

(a) the recognition that the existence of French-speaking Canadians, cen-
tred in Quebec but also present elsewhere in Canada, and English-speaking
Canadians, concentrated outside Quebec but also present in Quebec, consti-
tutes a fundamental characteristic of Canada; and
(b) the recognition that Quebec constitutes within Canada a distinct society.

49 Ibid at 11. The procedure was followed for three years, until the death of the Meech

Lake Accord.

982 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

The Meech Lake Communiqu of April 30, 1987, was approved unan-
imously by the prime minister and the premiers of all the provinces, in-
cluding Quebec, and was met with great enthusiasm and the hope that
this might be the end of our constitutional difficulties. That mood held
through the technical discussions over the next month or two at the offi-
cials level as small changes were discussed. Another first ministers meet-
ing was held on June 2 and 3 to finalize the details of the proposed resolu-
tion.

The June 2 meeting was held across from the Parliament Buildings in
the Langevin building where the prime minister had an office. The first
ministers met in a boardroom on the fourth floor. There were a few final
areas of concern to sort out in relation to the distinct society clause and
the spending power provisions. The discussions dragged on well into the
wee hours of the morning of June 3. I would occasionally get a request to
draft a new provision for consideration, and some of these became quite
vague as the night wore on. I remember one in particular relating to the
spending power that made no sense to me at all. I was told, when I re-
quested clarification, to just draft something. It seemed that there was a
desire to keep the discussions going until a consensus was reached and
the final package was approved.
There were some heated exchanges between delegates waiting

through the night as they met in the corridors of the Langevin building.
Former Prime Minister Trudeau had already made his first public state-
ment opposing the deal, and some doubts had started to creep in. As the
night wore on, many were visibly stressed and exhausted, and some tem-
pers became short. There was one light diversion in the middle of the
night when several enormous trays of doughnuts arrived. They were wel-
comed by the weary delegates, who devoured them in no time.
An agreement was finally reached around four in the morning. This
was the second unanimous agreement to proceed with the Meech Lake
Accord. The first ministers signed the Meech Lake Accord (known also as
the 1987 Constitutional Accord) on June 3, 1987, which included as one of
its provisions the undertaking that all parties would proceed with the
necessary resolution to trigger the proclamation of an amendment to the
constitution.50 This time, the exact legal text of the resolution was ap-
pended.

50 Ibid at 10.

 MAKING CONSTITUTIONAL HISTORY 983

Initially, the Meech Lake Accord was met with a level of public ex-
citement and celebration.51 Quebec was the first to table the necessary
resolution in its National Assembly, and the resolution was adopted on
June 23, 1987. That initiated the three-year period within which the reso-
lutions of seven provinces would have to be adopted under the general
amending procedure. The Meech Lake Accord included some amendments
that called for the general procedure and others that required unanimous
approval. The draft amendments were part of one interrelated package. I
advised that both the three-year limitation period and the need for una-
nimity would apply simultaneously.52
A joint parliamentary committee was quickly set up after the resolu-
tion was adopted in Quebec, and the House of Commons followed, with lit-
tle delay, in adopting the resolution in the fall of 1987. The legislative as-
semblies of eight provinces had passed their resolutions by the summer of
1988all but Manitoba and New Brunswick.53

It was essential, of course, that every legislative body approve the
identical package of amendments. We assured this by asking each juris-
diction to send me their resolution before tabling it, and it was checked
very carefully both by me and by our legislative editors to uncover any
discrepancies. As it happened, we did find a number of editorial discrep-
ancies and these were adjusted.54

B. The Agreement Unravels

Gradually, opposition to the Meech Lake Accord began to gather
strength. People complained that the deal had been cooked up behind
closed doors by a group of men in suits. There was a general mistrust of
what was referred to as executive federalism. The Charter had given
Canadians a sense of empowerment, and they were resisting what they
characterized as secret deals. The federal government took the position, in

51 I cite, for example, the headline in the newspaper Le Droit. It read, Un veritable tour
de force. I still have a copy hung on my wall at home (Un veritable tour de force, Le
Droit [Gatineau] (4 June 1987)).

52 Some commentators have suggested that only the unanimity procedure need apply,
since it is the most stringent requirement, and that there was no need to worry about
the three-year deadline. I think it is quite clear that both would apply.

53 By then, the House of Commons, following the procedure in section 47 of the Constitu-
tion Act, 1982 (supra note 11), had approved the resolution for a second time to compen-
sate for the fact that the Senate had adopted it with amendments. Section 47 allows for
amendments without Senate approval if the Senate fails to authorize the amendment
within one hundred and eighty days of the House adopting its first resolution.

54 This procedure has been followed for all the constitutional amendments that have been

made to date where provincial resolutions have been required.

984 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

the course of the parliamentary hearings when the resolution was being
debated, that no changes should be made to the proposed amendments
unless an egregious error was found in the text. It certainly would have
been problematic, once Quebec had approved the resolution, to try to
change anything in it. This reluctance to make changes, however, only
added to the suspicions held by some members of the public.

The distinct society provision was the focus of much of the dissent.
Many objected to giving Quebec a special status, preferring the principle
of the equality of the provinces. In response to these arguments, the Gov-
ernment of Canada pointed to the many other examples in the constitu-
tion where there were special provisions for individual provinces.
Many argued that the Government of Quebec would be able to evade
the provisions of the Charter using the distinct society clause. Similar
concerns had been raised during the period between the Meech Lake
Communiqu of April 30, 1987, and the meeting in June, and section 16
was added to the final legal test to address these concerns. That section
provided that the distinct society provision did not affect any of the provi-
sions of the constitution that relate to the Aboriginal peoples of Canada or
section 27 of the Charter, which related to multiculturalism. This addition
did not satisfy those who had raised concerns.
Womens groups attacked the Meech Lake Accord with particular vig-
our. They were encouraged by their previous successes with section 28 of
the Charter during the patriation negotiations. Women outside Quebec
now raised concerns that, under the Meech Lake Accord, the Government
of Quebec could override rights of women using the distinct society clause.
They went so far as to suggest that laws could be enacted, using the dis-
tinct society provision, that would require women to have a certain num-
ber of children so as to increase the population of Quebec. These com-
ments were not well received by womens groups in Quebec.
Aboriginal groups and territorial representatives complained that
their concerns had been ignored. Comparisons between what appeared to
be the quick resolution of the Quebec issues and the failure of the last Ab-
original first ministers conference, just two months before the meeting at
Meech Lake, were likely fresh in their minds.
Changes of government in three provinces had a direct impact on the
fortunes of the Meech Lake proposals. Frank McKenna, who was elected
premier of New Brunswick on October 13, 1987,55 early in the three-year
process, had opposed the accord. Although Premier McKenna ultimately
became one of its strongest supporters, he initially added to the momen-

55 His party won every seat in that landslide election.

 MAKING CONSTITUTIONAL HISTORY 985

tum against it. Manitobas 1988 election led to a new minority govern-
ment, and the members of the legislative assembly of that province re-
mained less than enthusiastic about the Meech Lake Accord. Clyde Wells,
who became premier of Newfoundland following his election victory on
May 5, 1989, ultimately, in April 1990, revoked the assent given under
the previous Newfoundland government.
One of the most significant factors in the ultimate demise of the
Meech Lake Accord was the very fact that there were three years within
which to complete all the provincial and federal resolutions. This allowed
enough time for forces of dissent to gain strength and resulted in too long
a period to maintain a sustained effort to push the agreement to comple-
tion.

There were months when attention was diverted from the Meech Lake
Accord during this period. The most significant diversion was the Canada-
United States Free Trade Agreement being negotiated with the Ameri-
cans.56 A federal election was held in 1988, during which the free trade
agreement took centre stage and was hotly debated. Canadian legislation
was developed to accommodate the free trade agreement, and this process
involved its own series of federal-provincial negotiations.

The single event most damaging to the success of the Meech Lake Ac-
cord was probably the use of the notwithstanding clause (section 33 of the
Charter) by Quebecs Premier Bourassa in December 1988 to override a
recent Supreme Court judgment that struck down amendments to Que-
becs language legislation, which banned the use of English on commercial
signs.57

The timing of Premier Bourassas announcement could not have been
worse. Premier Gary Filmon of Manitoba had tabled Manitobas resolu-
tion in support of the Meech Lake Accord on December 16, 1988, but
withdrew it almost immediately on December 19, 1988, three days after it

56 Free Trade Agreement Between the Government of Canada and the Government of the
United States, 22 December 1987, Can TS 1989 No 3, 27 ILM 281 (entered into force 1
January 1989). I myself became quite involved in this file, advising on the structure of
the federal legislation and participating in some of the negotiations with the provinces.
57 Ford v Quebec (AG), [1988] 2 SCR 712, 54 DLR (4th) 577 [Ford cited to SCR]. The Su-
preme Court supported Quebecs objective of establishing measures to protect the
French language in Quebec (ibid at 779-80). In fact, in assessing whether the limits on
freedom of expression were reasonable under section 1 of the Charter (supra note 10),
the Supreme Court took note of Quebecs unique linguistic situation in a predominantly
English-speaking North America, thus recognizing Quebecs distinctiveness as the only
French-speaking jurisdiction in North America. However, the Court found that the
Quebec National Assembly had gone too far in banning English from public signs alto-
gether, suggesting instead that some solution like a predominance of the French lan-
guage on signs would be acceptable under the Charter.

986 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

was tabled and only one day after Premier Bourassa invoked the override.
Premier Filmon angrily suggested that such an extreme restriction of
English minority language rights in Quebec violated the spirit of the
Meech Lake Accord itself.
Undoubtedly, the most important and persuasive foe of the Meech
Lake Accord was former Prime Minister Trudeau. He still retained much
of his original charisma. Mr. Trudeau had been the driving force behind
the acceptance of the Charter and had argued against diluting its effect in
any way (although he did agree to the section 33 override in November
1981). He argued forcefully against a special status for Quebec. The ar-
guments that Quebec was already distinct and that the constitution al-
ready contained unique provisions for Quebec carried no weight with Mr.
Trudeau. His intervention in the debate had a profound effect.

Throughout the whole period, federal officials tried to respond to con-
cerns and to convince those opposing the Meech Lake Accord to come
around.58 In November 1989, Prime Minister Mulroney convened a pri-
vate meeting of first ministers to canvass the situation. Then, Senator
Lowell Murray made two tours of the provinces to pursue the discussions
further.59 Priority was given to the two provinces that had yet to adopt
resolutions, New Brunswick and Manitoba, and to Newfoundland, in par-
ticular Premier Wells, who continued to express strong opposition to the
accord.

In New Brunswick, Premier McKenna had long since changed his
original position and had become an active proponent of the Meech Lake
Accord. In fact, his position changed fairly soon after he took office as
premier. He had become convinced that the Meech Lake Accord was im-
portant for the unity of the country. However, he continued to look for
ways to make certain adjustments to the package. He was particularly in-
sistent on getting a provision into the constitution to entrench the provi-
sions of a New Brunswick statute that guaranteed equality of status to
the English and French linguistic communities in New Brunswick.60

58 We even looked at other options, like whether we could start a new process and proceed
with the proposals that only required the approval of seven provinces. The proposals re-
lating to the amending formula and probably at least a portion of those relating to the
Supreme Court would require unanimity. These other options were not seriously pur-
sued, so far as I know.

59 I went along on most of these trips, along with Norman Spector and David Paget from
the Federal-Provincial Relations Office. It was my first and only experience on the gov-
ernments Challenger jets.

60 An Act Recognizing the Equality of the Two Official Linguistic Communities in New

Brunswick, RSNB 2011, c198 (commonly referred to at the time as Bill 88).

 MAKING CONSTITUTIONAL HISTORY 987

The federal government worked with Premier McKenna to develop
what became known as New Brunswicks Companion Accord.61 There
were private and highly confidential meetings involving federal officials
and ministers, Premier McKenna, and members of the McKenna govern-
ment62 to develop this agreement. Part of the proposal provided that the
Companion Accord, while agreed to beforehand, would not be dealt with
until the Meech Lake amendments had been proclaimed in force. It was
intended to avoid the problem of opening the Meech Lake Accord. Fur-
thermore, the resolution for the Companion Accord was drafted in such a
way that its different components were severable, that is to say that those
to which different amending formulas applied could be dealt with sepa-
rately.
Both the Meech Lake resolution and the proposed Companion Resolu-
tion were tabled in the New Brunswick legislative assembly on March 21,
1990. The Companion Resolution was tabled two days later in the House
of Commons and sent for study to a committee chaired by Jean Charest,
then a young Conservative member of Parliament.63 The Charest Report
endorsed most of the recommendations contained in the Companion Reso-
lution.64
On this basis, after canvassing each of the first ministers individually,
Prime Minister Mulroney called them together one last time in early June
1990 to meet over dinner to consider the substance of the Companion Ac-
cord. He hoped to convince the premiers of the last three provinces, New

61 This accord, if acted upon, would have included the provision that New Brunswick
wanted recognizing the equal status of the English and French linguistic communities;
references to the territories in some of the provisions of the Meech Lake Accord; the
power for the Senate and House of Commons to trigger, by resolution, the establish-
ment of new provinces in the territories (a process that would currently take place un-
der the general amending formula); and the inclusion of matters affecting the Aborigi-
nal peoples of Canada on the agendas of the annual constitutional conferences provided
for in the Meech Lake Accord.

62 I remember well the trip to New Brunswick with Senator Murray, Frank Iacobucci (at
the time, deputy minister of justice), and Norman Spector. We ended up sitting around
the dining room table of Alda Landry, then minister of intergovernmental affairs for
New Brunswick, with Premier McKenna and several others, refining the details of the
Companion Accord. We jokingly suggested it should be called the Dining Room Ac-
cord, in reference to the earlier Kitchen Accord.

63 Jean Charest, head of the Liberal Party of Quebec since December 15, 1998, became
premier of Quebec when the Liberal Party replaced the Parti Qubcois government in
the general election held in Quebec on April 14, 2003.

64 House of Commons, Special Committee to Study the Proposed Companion Resolution to
the Meech Lake Accord, Report of the Special Committee to Study the Proposed Com-
panion Resolution to the Meech Lake Accord (May 1990) at 10 (Chair: The Honourable
Jean Charest).

988 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Brunswick, Newfoundland, and Manitoba, to take steps to have the
Meech Lake resolution adopted in their provinces. That dinner at the Mu-
seum of Civilization in Hull stretched into a meeting that lasted a week,
back across the river in Ottawa at the Government of Canada Conference
Centre. At the end of a pressure-cooker week for which no one was pre-
pared, an agreement was reached. That was the third time an agreement
on the Meech Lake Accord was reached between the prime minister of
Canada and the premiers of all ten provinces.

The agreement of June 9, 1990, included an undertaking that the
three remaining provinces would complete their approval process for the
Meech Lake Accord prior to June 23, 1990. It included a number of other
undertakings as well. Senate reform would be pursued over the next five
years according to a process set out in the agreement and would be given
priority, and an agenda for future constitutional discussions was set out.
The Companion Accord would be pursued only after the Meech Lake
amendments were proclaimed. The bilateral amendment for New Bruns-
wick in relation to English and French linguistic communities, which was
part of the Companion Accord, would be pursued as soon as possible after
the Meech Lake amendments were proclaimed.65
The premiers returned home with less than two weeks left before the
deadline date for Meech Lake. Only New Brunswick adopted a resolution
to approve the accord during that period.66 In Manitoba, Premier Filmon
tabled a motion for the resolution on June 20, 1990. However, Elijah Har-
per, an Aboriginal member of the Manitoba legislative assembly, acting
with the backing of the Assembly of Manitoba Chiefs, refused to support
the unanimous consent needed to adopt the resolution in the short time
available. The image of Elijah Harper, holding a feather and refusing to
back down, was carried in all the news media across the country and re-
mains imprinted on our collective memory.

Premier Filmon had been warning of this possibility during the final
negotiations. I thought this setback might be manageable, however, if
provincial legislative assemblies that had adopted the resolution early in
the process would readopt it in order to extend the three-year period. This
solution would be complicated, though, because Quebec had been the first
to adopt the Meech Lake resolution and might be unwilling to adopt the
resolution again for fear of being rebuffed yet again. As well, Premier

65 The New Brunswick amendment was the only element of the June 9, 1990, agreement
that was achieved. It came into force in 1993 as section 16.1 of the Charter under the
Constitution Amendment, 1993 (New Brunswick) (supra note 40).

66 The New Brunswick resolution was adopted on June 15, 1990.

 MAKING CONSTITUTIONAL HISTORY 989

Wells of Newfoundland, seeing the agreement unravel in Manitoba, de-
cided not to put the resolution to a vote in Newfoundland.
On June 22, 1990, Senator Murray, on behalf of the Government of
Canada, announced that the process was over. I had spent most of that
day trying to pave the way for a possible reference to the Supreme Court
of Canada on the question of rolling forward the three-year limit.67 By the
time that Senator Murray made his announcement on television, I had
spoken to officials in almost all of the provinces, and all of them had
agreed that they would support, or at least not oppose, the federal posi-
tion in such a reference. It was not to be.

I was devastated by Senator Murrays announcement and by the fail-
ure of the amendments that we had worked for three years to achieve. I
retreated for a week to our family cottage across the Ottawa River into
Quebec to rest and recover from the disappointment. I had hoped in vain
that we could extend the three years a little and that, hopefully, once
Manitoba had adopted the resolution, Premier Wells would follow suit in
Newfoundland.
However, the politicians in Ottawa had had enough. The drama of the
Quebec Round had ended. Quebec withdrew once again from constitu-
tional discussions.

C. Echoes of Meech Lake

Despite the failure of the Meech Lake Accord itself, its footprint re-
mains. Quebecs five conditions are not reflected in the constitution of
Canada, but most of them have been acted upon in one way or another in
practice.
With respect to the distinct society clause, in 1988, even before the
fate of the Meech Lake Accord was settled, the Supreme Court took note
of Quebecs unique linguistic situation, recognizing Quebecs distinctive-
ness and the legitimacy of its objective of maintaining its French-speaking
character. It found, nonetheless, that, in this particular instance, Quebec
had gone too far.68 In 1995, following up on a pledge made just before the
Quebec referendum on sovereignty that year, the House of Commons and
the Senate adopted similar resolutions recognizing Quebec as a distinct
society within Canada.69 Both resolutions made specific reference to Que-

67 I think it is quite clear that nothing in the amending procedures would prevent this ap-

proach, but there were some who disagreed with my interpretation.

68 Ford, supra note 57 at 779-80.
69 The resolution was adopted by the House of Commons on December 11, 1995, and by

the Senate on December 14, 1995.

990 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

becs French-speaking majority, its unique culture, and its civil law tradi-
tion, and encouraged the government and Parliament to be guided by that
reality.
With respect to the amending formula, again following up on a pledge
made just before the 1995 Quebec referendum on sovereignty, the Gov-
ernment of Canada introduced a bill, commonly known as the Quebec Ve-
to Bill,70 imposing upon itself the requirement that there be regional con-
sent before a resolution can be proposed by any minister of the Crown un-
der the general amending procedure. This statutory requirement would
be applied over and above the requirements of the constitutional amend-
ing formula. It has the effect of giving Quebec, Ontario, and British Co-
lumbia a veto over all amendments under the general amending formula,
bringing the situation closer to the expanded use of the unanimity proce-
dure proposed in the Meech Lake Accord.

Three of the nine judges of the Supreme Court of Canada continue to
come from the Bar of Quebec. Although an amendment has not been
made to the constitution, there is an argument to be made that this re-
quirement, found in the federal Supreme Court Act,71 already forms part
of the constitution. In any event, the rule has been followed for many
years. No move has been made, however, to proceed with the proposal
that Supreme Court judges be chosen from among names submitted by
the provinces, and this would appear unlikely to happen in the near fu-
ture.

The Meech Lake Accord would have given the right to provincial gov-
ernments to require the federal government to negotiate agreements re-
lating to immigration. Immigration agreements continued to be negotiat-
ed with Quebec after the failure of the Meech Lake Accord72 and, so far as
I know, continue to be negotiated with Quebec and with other provinces.
With respect to the federal spending power, the Meech Lake Accord
provided for compensation to any province opting out of a national shared-
cost program in an area of exclusive provincial jurisdiction if the province
carried out a program or initiative that was compatible with the national
objectives.73 The federal spending power is a difficult area that is a con-
stant source of concern for the provinces. While some efforts toward estab-
lishing understanding and accommodation in relation to the spending

70 The resulting act is An Act respecting Constitutional Amendments, SC 1996, c 1.
71 RSC 1985, c S-26, s 6.
72 Under these agreements, the main objective for Quebec has been to participate in the
selection of persons who will settle in Quebec so as to protect the linguistic and cultural
profile of the province.

73 Meech Lake Accord, supra note 48 at 16-17.

 MAKING CONSTITUTIONAL HISTORY 991

power took place in the 1990s after the failure of the Charlottetown Ac-
cord, it remains a contentious area.
Even though the Meech Lake Accord was ultimately unsuccessful, the
five conditions set by Quebec are not forgotten and have been, to some ex-
tent, realized at a practical level.

V. The Charlottetown Accord

In the late fall of 1990, less than six months after the demise of the
Meech Lake Accord, the Government of Canada embarked once again on
a constitutional journey, this time to address not only Quebecs demands
but also the multitude of demands from other parts of Canada that had
arisen during the Quebec Round. The government expanded its reach be-
yond provincial issues to include Aboriginal and territorial issues as well
as those of ordinary Canadians. All these concerns were considered.

The process that resulted in the Charlottetown Accord74 was referred
to as the Canada Round. It stands in marked contrast to the Quebec
Round, which appeared, when the Meech Lake Accord was made public,
to come into being overnight and with no involvement of the Canadian
public. The Canada Round began quite differently. Before any proposals
were considered, extensive public consultations were carried out.

The two accords differed, as well, in their scope. The Meech Lake Ac-
cord was intended only to address Quebecs issues and was perhaps most
important as a symbol of the acceptance of Quebecs special place in Can-
ada by the other parts of Canada. The Charlottetown Accord, on the other
hand, attempted to deal with a broad range of concerns from all parts of
Canada. The Meech Lake Accord was short and relatively simple; the
Charlottetown Accord was long and complex.

The concerns of Aboriginal communities were becoming increasingly
public. In July 1990, there was a serious standoff between an Aboriginal
community and police at Oka, Quebec, over sacred land that was to be
used for a golf course. The territorial governments, with strong ties to Ab-
original communities, were also pushing to be heard.75

74 The designation of the Charlottetown Accord was chosen at the very end of the Canada
Round. When it appeared quite certain that a deal was about to be struck, the first min-
isters decided to hold one final meeting in Charlottetown so that the accord could be
signed in the place where the last conference was held in Canada in the process leading
up to Confederation in 1867. Ironically, Prince Edward Island was not among the first
four provinces to form Canada in 1867 but waited to join Confederation until 1873.

75 One of the main concerns of the territorial governments was to make it easier for terri-
tories to attain provincial status. Before the coming into force of section 38 of the Con-

992 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Western Canadians were feeling increasingly alienated. They found
the federal government to be unduly preoccupied with the more populous
and powerful central Canadian provinces of Ontario and Quebec, to the
detriment of the West. Senate reform had become a touchstone for many
Westerners, with the cry for a Triple-E Senateone that was elected,
equal, and effective.
The federal government began by establishing two separate consulta-
tive mechanisms. The first was the Citizens Forum on Canadas Future,
set up on November 1, 1990, to engage in dialogue with Canadians in an
informal and unstructured way. The resulting report, which was tabled on
June 27, 1991, reflected a general disenchantment with politicians and
political processes76 and recommended direct, grassroots consultations.

The second was a special joint committee,77 set up on December 17,
1990, to consult on amendment processes. The committees report, tabled
on June 20, 1991, recommended a number of constitutional amendments.
It recommended that we return to the model proposed by the Government
of Canada in 1981, based on regional blocks, rather than the provincial
formula that was agreed upon, based on the equality of the provinces.78
Perhaps more significantly, the committee recommended a number of
other measures that did not require constitutional change, several of
which advocated expanded consultations with Aboriginal peoples, territo-
rial governments, and the general public. It also recommended that legis-
lation be adopted to provide for the possibility of consultative referendums
in relation to proposals for constitutional amendments.79
All the provinces set up similar commissions or committees to consider
constitutional issues during this period. All had reported by early 1992.

stitution Act, 1982 (supra note 11), which requires the consent of seven provinces under
the general 7/50 formula to effect such a change, it would have been possible for a terri-
tory to become a province on the consent of the Government of Canada alone. The pro-
posed changes to the amending formula in the Meech Lake proposals went further and
would have required the unanimous consent of all the provinces.

76 The chairman of the commission, Keith Spicer, put it bluntly in his oft-quoted comment
there is fury in the land against the prime minister (Citizens Forum on Canadas Fu-
ture, Report to the People and Government of Canada (Ottawa: Minister of Supply and
Services Canada, 1991) at 6-7).

77 This committee is commonly referred to as the Beaudoin-Edwards Committee.
78 House of Commons, Special Joint Committee of the Senate and the House of Commons
on Process for Amending the Constitution of Canada, The Process for Amending the
Constitution of Canada: The Report of the Special Joint Committee of the Senate and the
House of Commons (20 June 1991) at 26-27 (Chairs: Grald Beaudoin & Jim Edwards).

79 Ibid at 69-70.

 MAKING CONSTITUTIONAL HISTORY 993

There were two reports tabled in Quebec,80 still under a Liberal govern-
ment, both of which called for radical changes to the powers of Quebec if it
was to stay in Canada and both of which contemplated the possibility of
sovereignty of Quebec. Both recommended a referendum on sovereignty in
Quebec by the fall of 1992.81
In the spring of 1991, the Canada Round can be said to have begun. A

newly constituted Cabinet Committee on Canadian Unity and Constitu-
tional Affairs (Cabinet Committee) began work in earnest under the
chairmanship of a new minister of constitutional affairs, former Prime
Minister Joe Clark.82 The Cabinet Committee met weekly and held its
meetings at various locations across the country in order to underline its
intention to take the concerns of all regions of Canada into account. The
work done was detailed and serious. The Cabinet Committee was accom-
panied by a retinue of officials, including me. I assisted in developing pro-
posals and prepared the usual binder of detailed drafts.

The governments proposals were made public in the form of a softcov-
er publication called Shaping Canadas Future Together.83 This publica-
tion covered the range of topics that were to become part of the Charlotte-
town Accord. It was augmented by a series of individual publications, all
with matching blue covers with a red maple leaf. The government hoped
that the public would read these publications and would gain a deeper
understanding of the issues at play. The Special Joint Committee on a
Renewed Canada (Beaudoin-Dobbie Committee) was established on June
21, 1991, to consider the governments proposals. The Beaudoin-Dobbie
Committee, which itself had the power to travel and hold hearings

80 The reports of the Allaire Committee were made public on January 28, 1991 (Quebec, A
Qubec Free to Choose: Report of the Constitutional Committee of the Qubec Liberal
Party (Submission to the 25th members convention), (np: Qubec Liberal Party, 1991
[Allaire Report]), and the report by the Blanger-Campeau Commission was concluded
on March 27, 1991 (Quebec, Report of the Commission on the Political and Constitu-
tional Future of Quebec (St-Romuald, Que: Imprimerie St-Romuald, 1991) [Blanger-
Campeau Report]).

81 Allaire Report, supra note 80 at 58-59; Blanger-Campeau Report, supra note 80 at 79-

81.

82 Joe Clark was appointed to this position on April 21, 1991. He was the prime minister
from June 4, 1979, to December 13, 1979, when his new Conservative government was
unexpectedly defeated in Parliament. This defeat gave Prime Minister Trudeau the op-
portunity to return to power on February 18, 1980. Mr. Trudeau was sworn in as prime
minister on March 3, 1980.

83 Government of Canada, Shaping Canadas Future Together: Proposals (Ottawa: Minis-

ter of Supply and Services Canada, 1991).

994 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

throughout Canada, was given a deadline of February 28, 1992, by which
to report.84
As one final consultation exercise before the provinces were formally
engaged, the Government of Canada arranged for a series of five confer-
ences, each held in a different part of Canada, each to concentrate on a
different aspect of constitutional change. The conferences covered the dis-
tribution of powers, national institutions, the economic union, and a pro-
posed Canada clause, and there was a final general conference. A sixth
conference was added, at the request of Aboriginal groups, to cover Abo-
riginal issues. That last conference was held after the Beaudoin-Dobbie
Committees report came out.

These conferences were highly successful, so far as they went. They
were attended by between two hundred and three hundred people, includ-
ing: federal, provincial, and territorial representatives; Aboriginal repre-
sentatives; members of the Beaudoin-Dobbie Committee; and, most inter-
estingly, about fifty ordinary Canadians. The conference organizers
chose the ordinary Canadians by lot, but with an eye to regional bal-
ance, from among the individuals who had applied to take part in these
conferences. Since the participants expenses were paid, no one was ex-
cluded for cost reasons.

Participants were divided into smaller groups to study the issue at
hand, functioning like focus groups and then reporting back to a plenary
session, which was televised. It was remarkable how engaged the partici-
pants became and how seriously they worked to adjust proposals so that
they were acceptable to all. Unfortunately, we did not figure out how to
transpose that feeling of ownership from the participants in those confer-
ences to the public at large.
Finally, after all these consultative exercises had taken place, the

multilateral meetings of government leaders began on March 12, 1992.
This time, however, in contrast to the Meech Lake process, there were
representatives not only of the federal government and the provinces, but
also of the territories and the four national Aboriginal groups. Quebec
alone was not represented at the meetings. The meetings were held in
private, but there were press briefings at the end of each day. A large ret-
inue of officials attended these meetings with the leaders. Meetings were
held in different parts of Canada at a frenetic pace, through the spring
and into the summer of 1992.

84 House of Commons, Special Joint Committee of the Senate and the House of Commons
on a Renewed Canada, A Renewed Canada: The Report of the Special Joint Committee
of the Senate and the House of Commons (28 February 1992) (Chairs: Grald Beaudoin
& Dorothy Dobbie).

 MAKING CONSTITUTIONAL HISTORY 995

The range of subjects was extensive. All the elements of importance to
Quebec that were included in the Meech Lake Accord were discussed, but
there was much, much more. The preoccupations of all the participants
were addressed. The only way to manage the breadth of subjects was to
create separate working groups of officials to concentrate on specific parts
of the package. Four working groups were created. Managing the legal
and policy input in four groups that met simultaneously, let alone finaliz-
ing the drafting for each of those groups, was a truly daunting exercise. I
assigned one or two lawyers from my Public Law Sector of the Depart-
ment of Justice to each of these working groups, and I attended one or an-
other myself, depending on which seemed most important at any particu-
lar time.

The first group dealt with the Canada clause and the amending for-
mula. The Canada clause included an adjusted version of the distinct so-
ciety provision85 in one paragraph and a provision recognizing Canadas
linguistic duality in another paragraph, but only as two of eight funda-
mental characteristics that were felt to be deserving of mention.86 Many
hours were spent refining the Canada clause.

The second working group dealt with institutions, including the Su-
preme Court and the Senate. The amendments proposed for the Supreme
Court were similar to those in the Meech Lake Accord. The Senate pro-
posals were complex and detailed. They were the last part of the accord to
be drafted, and the drafting was only completed after the signing of the
accord in Charlottetown.87 The proposals outlined a smaller Senate that
was to be elected and was to have equal representation from all provinces.
A mechanism was proposed to break a deadlock between the Senate and
the House of Commons by joint action, with the members of both houses
voting as one body. This would usually favour the House of Commons be-

85 Canada, Consensus Report on the Constitution: Charlottetown (Final text), (Ottawa: no
publisher, 1992) at 1 [Charlottetown Accord]. The distinct society provision now read:
Quebec constitutes within Canada a distinct society, which includes a French-speaking
majority, a unique culture and a civil law tradition (ibid [emphasis added]). The itali-
cized words added to the end of this provision were intended to circumscribe the poten-
tial breadth of the provision.

86 The others related to Canadas commitment to the rule of law, the Aboriginal peoples of
Canada, racial and ethnic equality, respect for human rights and freedoms, equality of
female and male persons, and the principle of equality of the provinces: ibid at 1.

87 I remember spending one sunny weekend in September at my cottage trying to sort out
a coherent final draft for a set of amendments that had only been generally discussed,
without complete drafts.

996 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

cause of its larger size. There were also special rules for particular types
of bills.88

The third working group dealt with Aboriginal peoples and their
rights. The most interesting work was, I think, done in this working
group. A proposal was fleshed out for the recognition of an inherent right
to Aboriginal self-government within Canada, along with a commitment
on the part of federal, provincial, and territorial governments to negotiate
the implementation of that right.89

The fourth group dealt with the distribution of powers, the spending
power, the economic union, and a social charter. The discussions in this
group were not easy to manage, particularly in relation to the distribution
of powers, and the issues were complex. I found the matters covered by
this fourth group to be the most problematic area of the Charlottetown
Accord.
When all these discussions were very well advanced and it seemed
that a consensus was developing in each of the areas, Prime Minister
Mulroney invited Premier Bourassa of Quebec to meet with the other first
ministers on August 4, 1992. Premier Bourassas acceptance of the invita-
tion set the stage for the return of the Quebec delegation at the critical
constitutional conference in Ottawa from August 18 to 22. A tentative
agreement was reached at that conference and, with only a few details
remaining, the final conference was held in Charlottetown for symbolic
reasons. An agreement between all parties, including Premier Bourassa,
was reached there on August 28, 1992.

It is interesting to note that even in the Canada Round, when so much
emphasis was placed on public consultation, officials and first ministers
found it necessary to carry on the serious negotiations in private. This is
the way that all major agreements are made when the stakes are high.
A referendum on sovereignty had been planned in Quebec for October
26, 1992. The Charlottetown Accord provided an opportunity to proceed
with a referendum on renewed federalism instead. A week after the ac-
cord was signed, Quebec set its referendum question on that agreement,
rather than on sovereignty. Prime Minister Mulroney set in motion a na-
tional referendum for the rest of Canada on the same question for the
same day, October 26, 1992.

88 Charlottetown Accord, supra note 85 at 4-6. The bills that would have had their own
special rules included revenue or expenditure bills, bills relating to natural resources
tax policy, and bills materially affecting French language or culture in Canada.

89 Ibid at 14-15.

 MAKING CONSTITUTIONAL HISTORY 997

Holding a referendum on constitutional change was something new
for Canadians, although, as I have noted, it had been proposed by Prime
Minister Trudeau in relation to the amending formula and the Charter in
1981 during the patriation negotiations. The only two referendums ever
held in Canada on a national level, one on prohibition in 1898 and one on
conscription in 1942, had resulted in bitter divisions across the country.90
We had serious concerns that the referendum on the Charlottetown Ac-
cord might result in similar regional splits.

The Charlottetown Accord might not have been taken to the people of
Canada for a vote, had it not been for the Quebec referendum plans. Hav-
ing been done once, however, the referendum process has likely set a
precedent that will be followed in the future.
About fifty-five per cent of the national vote opposed the Charlotte-
town Accord. The Aboriginal vote against the accord on reserves was
somewhat higher, at sixty-two per cent. As it turned out, we were very re-
lieved that there were no major discrepancies in the voting patterns in the
different regions of Canada. Only a very slightly higher percentage of
those living in Quebec rejected the accord, as compared to those in other
provinces.
Despite all the efforts that had been made to include the Canadian
public in the development of the amendment package, there remained a
significant level of distrust on the part of the public. Furthermore, the
amendments were so wide-ranging that they left plenty of scope for the
voters to find something that they did not like about them. The Charlotte-
town Accord was undoubtedly rejected not because of a united reaction by
Canadians but for multiple different reasons. Certainly, the reasons for
voting against the accord in Quebec were likely quite different from those
outside Quebec.

I myself was surprised by the relief that I experienced as the results of
the referendums were announced. There were parts of the package that I
did not like, especially in the area of division of powers, but I had been so
involved in the process that I had never realized that I might actually be
happy if it failed. There was no sense of loss like the one I had felt after
the failure of the Meech Lake Accord.

VI. The Aftermath
As would be expected, the failure of the Charlottetown Accord aggra-
vated the distancing of Quebec from the rest of Canada, although it was

90 Both of these referendums had been supported generally by English-speaking Canadi-

ans but opposed by French-speaking Canadians.

998 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

not met with the same emotion as the demise of the Meech Lake Accord.
There was no appetite anywhere to try again for broad constitutional re-
form, and that feeling has persisted until the present time. On September
12, 1994, the Parti Qubecois defeated the Liberal government of Daniel
Johnson, and once again we had a separatist government in Quebec. Part
of the Parti Qubcois election platform was to hold a referendum on sov-
ereignty. That referendum was held on October 30, 1995. It was so close91
that it sent shock waves through the federal government and the rest of
Canada.

The years following the failure of the Charlottetown Accord were tense
ones. In the period prior to the 1995 Quebec referendum, much theoretical
thinking was done about what would happen if Quebec were to separate,
but there was an air of unreality to it all. The public statements at the
federal level continued to focus on the reasons why Quebec should not
separate. After the 1995 referendum, separation became a distinct possi-
bility that could not be ignored. The federal focus shifted from the why
of separation to the how of separation, including what would be involved
in managing such a situation and what would be at stake. In the public
statements by the federal government, there was a serious effort to dispel
what we called the myths of separationthe idea that its effects would
be minimal.

The Government of Canada ultimately took direct action to meet the
threat of Quebec secession. It went before the courts in the Secession Ref-
erence92 and put forward legislation known as the Clarity Act.93 The legis-
lation was carefully constructed to ensure consistency with the opinion of
the Supreme Court in the Secession Reference.

It is not clear how much effect these efforts have had, but for whatever
reason, the threat of Quebec secession seems to have abated in the late
1990s, and thoughts turned to other matters. The Parti Qubcois gov-
ernment was defeated in a Quebec election held on April 14, 2003, and the
Liberal government returned to power in Quebec, under the leadership of

91 The vote was 49.42 per cent in favour of the yes side and 50.58 per cent in favour of
the no side (Referendums, supra note 9). Canadians outside Quebec, and many in
Quebec, watched in horror on television as the vote projections swayed from one side to
the other.

92 Reference Re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385. Several actions
had been filed in the Quebec courts, but it was evident that these actions would take
some years to reach the Supreme Court of Canada for final resolution. The federal gov-
ernment set three questions and took a reference to the Supreme Court.

93 An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme
Court of Canada in the Quebec Secession Reference, SC 2000, c 26. The act is commonly
referred to as the Clarity Act.

 MAKING CONSTITUTIONAL HISTORY 999

former federal Conservative Jean Charest. The relative silence on seces-
sion issues and on constitutional issues has continued through the first
decade of the twenty-first century. The turmoil and uncertainty of the
1990s, however, remains part of our collective memory, and we cannot
dismiss the possibility that it could happen again.

VII. Final Thoughts

Since the failure of the Charlottetown Accord, and up to the present
time, there have not been many voices calling for major constitutional
amendments. There have been no multilateral constitutional conferences
held since 1992. Canadians appear to have lost their appetite for what
had earlier been called our national pastime. It may be that we tried too
hard for constitutional change and we need to allow some time to pass to
determine what changes, if any, may actually be necessary or desirable.
At the same time, one must not lose sight of the fact that there have
been a number of successful constitutional initiatives in Canada since
1982, as discussed earlier in this paper.

The Canadian constitution has shown itself to be quite flexible over
the years. The courts have found ways to allow our constitutional rules to
grow and develop, as necessary, to reflect new attitudes in our society and
to accommodate changes brought about by modern life. Furthermore, one
need not always amend the constitution to accommodate change. It is in-
structive to recall Quebecs five objectives. While none are reflected in the
constitution, they have not been ignored.

Senate reform was an important element of the Charlottetown Accord.
It was addressed partly as a result of Western Canadas belief that the
West was not adequately represented in Ottawa and that Westerners
concerns were being ignored. The Western first ministers proposed a
comprehensive package of extensive changes to the Senate. Things have
changed in recent years, and the Western provinces have a much stronger
presence in Ottawa. The federal government is taking a different ap-
proach to Senate reform. It has put forward several pieces of legislation94
to make incremental changes to the Senate. These initiatives will likely
be challenged in the courts if they are passed. It will be interesting to see
what happens.

In the mid-1990s, Prime Minister Jean Chrtien decided simply to op-
erate on the assumption that there is an inherent right of the Aboriginal

94 See e.g. Bill C-7, An Act respecting the selection of senators and amending the Constitu-
tion Act, 1867 in respect of Senate term limits, 1st Sess, 41st Parl, 2011 (first reading 21
June 2011).

1000 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

peoples of Canada to self-government and to go ahead with self-
government arrangements on that basis, without the need for a constitu-
tional amendment to recognize the right. Progress is being made on a
case-by-case basis, and our understanding of the rights of the Aboriginal
peoples continues to evolve in the courts.
Frequent constitutional change is not necessarily a good thing. In fact,

it is perhaps quite undesirable. There are those who suggest that our con-
stitutional amending procedures are too rigid. I would argue that this is
not necessarily the case. A constitution is the fundamental law of a coun-
try, and adjustments to that law should not be taken lightly. Ideally, con-
stitutional changes should have the support of a strong majority of the
population and should reflect a desire for change for which support has
developed over time.