Public Choice 44:251-272 (1984). © 1984 Martinus Ni jho f f Publishers, Dordrecht. Printed in the Netherlands.

An analysis of constitutional change,

Canada, 1980-82

ALBERT BRETON*

I . INTRODUCTION

Because Canada's federal and provincial governments fa i l ed in 1927 to

come to an agreement on ways and means to amend the Br i t i sh North

America (BNA) Act - - an Act of the Imperial Parliament of the United

Kingdom that was and has remained, in e f fec t , Canada's const i tu t ion - -

the 1931 Statute of Westminster, which bestowed p o l i t i c a l independence

on Canada in that i t gave to Canadian governments the power to make and

to amend laws in a l l areas, including internat ional a f f a i r s , withheld

that r i gh t with respect to the BNA Act i t s e l f . The only government that

could formal ly amend the Canadian const i tu t ion remained that of the

United Kingdom, although, as a matter of convention, that r igh t was

never exercised unless e x p l i c i t l y requested by Canada. Af ter f i f t y - f i v e

years of repeated attempts, that s i tua t ion was brought to an end in

Ap r i l , 1982, when the Canada Act was o f f i c i a l l y proclaimed. An a-

greement had, however, been reached in November of the preceding year

which had largely set t led the issues incorporated in that proclamation.

The events of the two years immediately preceding the Consti-

*University of Toronto.

252

tutional Agreement of November 1981 constitute the prime focus of this

paper, but i t is important that the half-century of fai lures that pre-

ceded the 1981 success be kept in mind i f the meaning of these events is

to be properly evaluated.

To appreciate the significance of the struggles -- sometimes of

t ru ly epic proportion -- that took place over a formula to amend the BNA

Act, the place and significance of constitutions in the pol i t ica l l i f e

of countries must be understood. To put i t d i f ferent ly, only i f the

implications of alternative constitutional designs are understood wi l l

i t be possible to see why i t took so many years to come to an agreement

on an amending formula and why the 1982 Constitution has many of the

features i t possesses.

I w i l l therefore devote the next section to a discussion of the

meaning and significance of constitutions in the pol i t ical l i f e of

countries. I w i l l then be in position, in Section 3, to interpret some

of the more salient events of the 1980-81 constitutional history of

Canada, including some which have hitherto been d i f f i cu l t to

interpret. In Section 4, I w i l l use the analysis of the preceding two

sections to examine a few questions which straddle the immediate past

and the not-too-distant future.

2. THE SIGNIFICANCE OF CONSTITUTIONS

Constitutions and constitutional arrangements pertain to pol i t ica l

power, more precisely to the exercise of that power. Whether as written

documents or as unwritten conventions, they relate to pol i t ica l power in

two different ways, one negative, the other positive. I f optimally

designed in these two capacities, constitutions wi l l play a determining

role in supporting democracy and, therefore, pol i t ica l l iberty.

What I have labelled the negative aspect of constitutions concerns

the set of restrictions or constraints that are or can be placed on the

exercise of po l i t ica l power. Because democracies have, as a matter of

history, been wrested out of monarchies and dictatorships, because many

of them appear to be easy preys to juntas and cabals, and because demo-

cratic governments sometimes manifest a tendency to "over-legislate" and

to "over-regulate," i t is easy to understand why tradit ional democratic

253

doctrine as well as the more recent l i terature of Public Choice have

focussed on the negative role of constitutions. I

I t is useful to classify the set of constitutional restrict ions

into four groups. There are, f i r s t , the s t r i c t l imitations that result

from the basic separation of executive, legis lat ive, and judiciary

powers 2 as well as the l imitations imposed by the guarantee of certain

fundamental freedoms protected by more or less inviolable rules. There

are, secondly, the l imitations regarding such things as def ic i t f i -

nancing, money supply growth, the power to tax, and the attenuation of

property rights (through such devices as expropriation or eminent

domain) and contracts, matters that have received much recent attention

by economists.

Thirdly, there are the restr ict ions that come from the direct

control by citizens of legislatures and especially of public bureaucra-

cies, through the mediation of the courts. In the case of this third

class of restr ict ions, but also in the two mentioned in the previous

paragraph, much work s t i l l remains to be done relating to the equity and

efficiency of these restr ict ions and also on how both equity and ef-

ficiency vary as inst i tut ional designs are altered. In particular, more

work is needed on the efficiency of the bundle of regulations through

which the courts produce their decisions.

The fourth type of constitutional restr ict ion on the exercise of

po l i t ica l power comes through the division of powers (or functions)

which is an essential feature of federal states. There can be l i t t l e

doubt that the competition between governments impl ic i t in any division

of powers among jurisdict ional levels -- especially i f the powers are

concurrently assigned -- plays an important role in restraining the

exercise of po l i t ica l power, as recognized in the Federalist Papers. 3

This negative role of constitutions and of constitutional ar-

lTh is is not to say that these discussions have explored the whole domain of possible

r e s t r i c t i o n s on the exerc ise of democratic p o l i t i c a l power,

2The separat ion of these powers is not an a l l - o r -none phenomenon, Separation can be more or less complete and, in addition, it varies with political regimes. It is, fo r

example, different in the British Parliamentary and the American Congressional systems.

3Hamilton, Jay and Madison, (1937); see also Ostrum (1971).

254

rangements is c ruc ia l , but i t cannot be completely understood, nor even

completely spelled out, without an understanding of the second, posi-

t i ve , role of const i tu t ions. In that second ro le , const i tu t ions guaran-

tee that p o l i t i c a l power can ex is t and can be exercised. To understand

the cen t ra l i t y of that aspect of const i tu t ions, i t is necessary to

d ist inguish between p o l i t i c a l power and p o l i t i c a l force and to recognize

that there is a t rade-o f f between the two in that when author i t ies

cannot use power they use force.

Unlike the use of force, the exercise of p o l i t i c a l power has a

number of things in common with an exchange re la t ionsh ip . To put i t

d i f f e r e n t l y , the exercise of power requires acceptance, acquiescence, or

assent on the part of those governed. Po l i t i ca l sc ien t is ts say that

power must be leg i t imate i f i t is to be exercised e f f i c i e n t l y , i . e . , the

less legi t imate the power, the more force - - the more pol ice, army,

prisons, te r ro r , in t imidat ion , to r tu re , etc. - - is required to govern.

That is why dictatorships use force more than democracies, why crumbling

regimes resort to te r ro r and tor tu re , and why many monarchies of yester-

years seldom re l ied on force to govern.

Legitimacy in turn derives from t rus t . In a discussion of const i -

tut ions and of const i tu t ional arrangements, the t rus t which is relevant

is the one c i t izens place in governmental i n s t i t u t i ons . Trust, in that

instance, is confidence that these i ns t i t u t i ons - - the Parliament (House

of Commons and Senate in the Canadian context), the Cabinet, the courts,

the c i v i l service, the federa l -prov inc ia l machinery, etc. - - can de l i ve r

resul ts that are or seem to be, f a i r and jus t . The greater the conf i -

dence, the greater the t rus t . There is an ongoing debate in the l i t e r -

ature as to whether fairness and just ice are to be evaluated in terms of

outcomes or in terms of processes. I do not wish to enter that debate

here but would note that in my view both outcomes and processes are

inputs in the formation of judgments about whether jus t ice and fairness

are achieved.

Be that as i t may, i t is essential to keep in mind that t rus t is a

quanti ty which can be increased or reduced. 4 Put d i f f e r e n t l y , under

4For a model o f how ? rus t between persons can develop or decay, see Breton and

Wintrobe (1982) , Chapter 4. For an a l t e r n a t i v e m o d e l l i n g p o s s i b i l i t y , see Salmon (1983) ,

255

cer ta in condit ions, the t rus t that c i t i zens place in the i r p o l i t i c a l

i ns t i t u t i ons w i l l increase, while in other circumstances i t w i l l

decay. Although the analogy is fau l ty in certa in respects, the t rus t

that people place in money as a means of payment and as a store of value

and how that t rus t can augment or decay depending on the circumstances 5

is appl icable to p o l i t i c a l i ns t i t u t i ons . Const i tut ional arrangements

have a determining role to play in the amount of t rus t which c i t i zens

place in the i r governmental organizations. 6 That is brought about in a

number of ways. F i rs t , i f the res t r i c t i ons associated with what I have

label led the negative aspect of const i tu t ions are well-designed, they

w i l l foster t rus t by inducing c i t izens to re ly on the i r publ ic bodies.

Second, i f the const i tu t iona l processes and the outcomes which they

permit are deemed to be f a i r and jus t , c i t i zens w i l l think that t he i r

publ ic i ns t i t u t i ons are trustworthy. Third, t rus t can be induced by

pomp and pageantry, especia l ly i f that is associated with important

h is to r i ca l events. That is one reason why symbols are used so ex-

tens ive ly by governments. 7 Fourth, the occurrence of certa in events,

such as foreign invasions, wars, great natural d isasters, and economic

col lapses, when they are e f f ec t i ve l y "managed" can induce t rus t in the

governmental bodies that have thus proven themselves. But i f the

governments have not been able to cope, one often-encountered response

is a redraf t ing of the const i tu t ion to rechannel the t rus t of the c i t i -

zenry towards the apparatus of state.

In federal countr ies, the d iv is ion of respons ib i l i t i es and o b l i -

gations among ju r i sd i c t i ona l levels, by a f fec t ing the closeness of the

l ink between governmental i ns t i t u t i ons and c i t izens at d i f f e ren t levels ,

5See La id ler and Rowe (1980).

6Trust is vested in i n s t i t u t i o n s and in the people who occupy pos i t ions in those

i n s t i t u t i o n s . Although, at any given time, the t r u s t placed in i n s t i t u t i o n s and that

placed in people is d i f f i c u l t to d i s t i ngu ish , I assume tha t , in p r i n c i p l e , the two can be

analysed separa te ly . I t is because such a d i s t i n c t i o n is possible that we can understand why governmental institutions outlast governments.

7Symbols can also be divisive and in that case they do not lead to the accumulation

of trust, but to its opposite. As the following should indicate, many Canadian symbols

have been and are divisive.

256

wi l l condition the trust which citizens accord insti tut ions at each

level. This is surely true of all federal countries and explains why

changes in the division of powers are usually resisted by governments at

least at one level of jur isdict ion. In Canada, because of strong

regional attachments related to language differences, to an historical

configuration of immigration, to the insularity of certain regions, and

to other factors, the division of powers among jurisdictions is particu-

lar ly crucial to trustbuilding. To repeat, because the assignment of

powers not only affects the efficiency of the overall governmental

structure in producing policies, as Breton and Scott (1978) have empha-

sized, 8 but also because the assignment of powers affects the rate at

which citizens accumulate trust in the pol i t ical inst i tut ions at each

jurisdictional level, polit icians who decide on the assignment of powers

hold strong views about such assignments and about changes in them. The

division of powers, in other words, by influencing the distr ibution of

trust between governmental levels, conditions the distr ibution of le-

gitimacy which governments acquire.

3. THE EVENTS OF 1980-81

As a prelude to the analysis of the more salient events of 1980-81, I

note br ief ly -- although to do justice to a very complicated subject

would require much more space -- that the trust relationship of

Canadians with their national government has histor ical ly been a compli-

cated one. Until fa i r l y recently -- and even today for a cohort of

unknown but of significant size -- the trust placed in national govern-

mental insti tut ions was largely derived from the trust given to Brit ish

parliamentary insti tut ions. For that group -- real and spir i tual heirs

of the United Empire Loyalists 9 -- the greater the resemblance of

Canadian to Brit ish pol i t ical inst i tut ions, the greater the trust they

8Breton and Scott (1978), Chapter 7.

9The United Empire Loyalists - - also sometimes called American Tories - - were those Americans who fled to Canada at the occasion of the American Revolution in order to remain

faithful tO George III, the king of England.

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f e l t in those, the i r own ins t i t u t i ons !

This "derived" character of t rus t can help us understand many

features of the Canadian p o l i t i c a l scene. I t helps to explain the

unelected character of the Canadian Senate (the House of Lords is not

e lected) , why Canada had to wait un t i l 1964 to have a f lag of i t s own to

replace the Red Ensign (the f lag of the Br i t i sh merchant marine), why

the name of many Canadian public bodies mimics that of para l le l B r i t i sh

ones (Canada Council from Br i t i sh Council, Royal Society of Canada from

Royal Society, e tc . ) , or why, to some, the Charter of Rights and

Freedoms (unknown in the United Kingdom) is unacceptable. I t also helps

to understand the negative at t i tudes of many French Canadians towards

the national government, because the government has h i s t o r i c a l l y kept

that body more Br i t i sh than the Francophones would have l iked. And,

f i n a l l y , i t helps to understand the negative a t t i tude of many Canadians

- - especia l ly among the e l i t e - - v is -a-v is federalism.

Over the last 30 to 35 years the slow, but i r revers ib le , erosion of

the Br i t i sh connection - - due in part to the changing composition of the

Canadian populat ion, the associated gradual "minor i ta r iza t ion" of the

heirs of the United Empire Loyal ists and, not least , the decl ine of the

United Kingdom in world a f fa i r s accompanied by the emergence of the

United States and other world powers - - has made the Canadianization of

Canadian ins t i t u t i ons more possible. At the same time, the very

slowness of that erosion has made more d i f f i c u l t the adaptation in

federal i ns t i t u t i ons necessary to e l i c i t the t rus t of Francophones.

The burden of the argument developed in the remainder of th is

section is that the const i tu t ional struggle brought to an end in No-

vember 1981 was a struggle over the condit ions that would f a c i l i t a t e the

accumulation of t rus t in the i ns t i t u t i ons of the national government as

against those of provincial governments, and more pa r t i cu la r l y in the

i ns t i t u t i ons of the Government of Canada as against those of the Govern-

ment of Quebec. Not acc identa l ly , therefore, the proximate cause of the

1980-81 struggle was the Referendum in the Province of Quebec that was

meant to be the f i r s t formal step in a march toward p o l i t i c a l inde-

pendence for that Province.

There would be much to say about that Referendum, but space forces

me to be b r i e f . However, because of i t s c e n t r a l role in the events to

fo l low, I pause to make the fol lowing points: ( i ) though the goal of the

258

Parti Quebecois (PQ) was and remains fu l l po l i t i ca l independence, the

question that was put to Quebecers in May 1980 was not about inde-

pendence (since i t was known by the PQ that independence was unaccepta-

ble to the population) but about the Quebec government being given

permission by the population to approach the national government in

Ottawa to discuss the ways and means towards po l i t i ca l sovereignty in an

economic and monetary union with Canada (voters were c lear ly told that

i f a package was worked out, a second referendum would be held asking

them i f that package was acceptable); (2) al ternat ive questions were

tested in public-opinion pol ls short ly before the referendum to help the

Quebec government select the question that had the best chance of pro-

ducing a "Yes" vote; (3) large wage and salary increases were awarded to

publ ic-sector employees (including teachers and nurses) in the months

preceding the referendum (because a large proportion of these employees

were already separatists, the wage and salary increases were, in ef fect ,

payments or bribes offered so that employees would act ively campaign for

the "Yes" side, something they did with great zeal1°); (4) a " refer-

endum-budget" was presented short ly before the events in an e f fo r t to

"buy of f " the whole electorate; and (5) the organization of the refer-

endum campaign and of the referendum i t s e l f was regulated by a special

May 1980 referendum law that, to say the least, was not biased against

the "Yes" side. (For example, the law did not require that pol l ing

of f icers represent both the "Yes" and the "No" sides, and the evidence

is that they did not.)

After all this, the Patti Qu~b~cois was overwhelmingly defeated by

a 60- to 40-percent margin. The PQ government was, in effect, not only

told by the voters that independence or separation from the rest of

Canada was not desired, but i t was also instructed that i t could not

proceed with even the emasculated variety of independence which the PQ

had chosen to promote for tactical reasons.

To properly measure the significance of the defeat of the "Yes"

lOft is, therefore, easy to understand that when the PQ government decided in 1982 to

cancel these wage and salary increases -- the services having already been rendered -- it

met with serious opposition. It remains a mystery why the.government of Quebec decided to

"punish,' these who had been among its most ardent supporters when it decided that the

prereferendum excesses had to be corrected.

259

forces, i t is essential to know that there exists in Quebec and has

existed for as long as Canada has been a country two opposing views of

the place and role of the federal government in the pol i t ical ( i .e . ,

collective) affairs of Quebecers. One view, which I wi l l call "feder-

a l is t " -- though that label is far from being histor ical ly accurate,

even i f i t is currently more or less apposite -- believes that the

interests of Francophone Canadians, including not only material inter-

ests related to wealth and security but also interests pertaining to

language, culture, l iberty and justice, are best safeguarded and

fostered in a federation in which a national government plays a s ign i f i -

cant role. The other view, which I wi l l call "separatist" -- though

that label is again not histor ical ly accurate, since that view has often

been more autonomist than separatist -- believes that those same inter-

ests of Francophone Canadians (now in that view restricted to

Francophone Quebecers) can only be safeguarded and promoted by the

government of Quebec, to which as many constitutional powers as possible

-- or all of them -- should therefore be assigned.

I cannot inquire here into the merit and val id i ty of the two views,

nor document how their configuration has changed over time as the

problems, events, and pol i t ical crises have ebbed and flowed. I t is

suff icient for my purpose to recognize that the two views exist and have

existed; that the number of people who adhere to each of them, 11 that

the intensity with which they are held, and that the social and demo-

graphic composition of the group holding them have changed as circum-

stances have changed.

The campaign and the outcome of the referendum, given the weakness

of the question asked as well as the shenanigans surrounding the cam-

paign regulations and practices, provided reliable information on the

true weakness of the "separatist" view at that particular time. The

federalists, led by Prime Minister Trudeau, grasped early on the meaning

lIAdherents are, of course, mostly of the elite, although in some circumstances --

such as during the May 1980 referendum -- when passions are high, the bulk of the

population takes sides.

260

of what was happening and reacted accordingly. ~z In addit ion, the PQ

had stated time and again that i t would not take "No" for an answer.

Should i t lose th is referendum, i t would come back in another referendum

or in another way unt i l i t had obtained a "Yes." From the " fede ra l i s t "

standpoint, something had to be done not only to acknowledge the strong

"No" vote but also to prepare for another struggle in the fu ture. One

way of doing th is was to introduce change that would, over time, induce

Francophone Canadians to place more t rus t in the i ns t i t u t i ons of t he i r

national government.

I t is t rue, of course, that in the struggle over const i tu t iona l

matters fol lowing the Quebec Referendum, the national and a l l provinc ia l

governments were involved and many c i t izens across the country p a r t i c i -

pated. I wish to suggest, however, that the shape of the struggle and

the par t i cu la r nature of the outcome can be understood only i f i t is

acknowledged that in the last analysis the f i gh t was between two groups

of Francophones: one " f e d e r a l i s t , " centered in Ottawa and led by Pierre

Trudeau, the Prime Minister of Canada; the other "separa t is t , " centered

in Quebec City under the leadership of Rene Levesque , the Premier of

Quebec.

In defense of the hypothesis advanced in the last paragraph, I w i l l

suggest an in te rpre ta t ion of cer ta in key facts, a l l of which are es-

sent ia l elements of the drama.

When the forces were f u l l y aligned for combat, there was on the one

side the federal government supported by the provincia l governments of

Ontario and New Brunswick, and on the other side, the remaining eight

provincial governments led by Quebec. Two things must be explained: why

Ontario and New Brunswick sided with Ottawa and why seven provincia l

120n the 16th of May 1980, four days before the referendum vote, the Prime Minister,

in what observers have called "an electrifying performance" before a huge crowd in

Montreal, declared: ,,I know that I can make a most solemn commitment that following a ',No,'

vote, we will immediately take action to renew the constitution and we will not stop until

we have done that. And I make a solemn declaration to all Canadians in other provinces:

we, the Quel::~c MPs, are laying ourselves on the line, because we are telling Ouebecers to

vote "No" and telling you in other provinces that we will not agree to your interpreting a

"No" vote as an indication that everything is fine and can remain as it was before. We

want change and we are willing to lay our seats in the House on the line to have

change.,, From $heppard and Valpy (Ig82), p. 33.

261

governments accepted the leadership of Quebec in the confrontation with

Ottawa.

In September 1980, after a long postreferendum summer of negoti-

ations between Ottawa and the provinces, led by Jean Chretien, the

federal Minister of Justice, and Roy Romanow, the Attorney General of

Saskatchewan, the fai lure of a meeting of First Ministers ~3 to come to

any agreement prompted the federal government to proceed uni lateral ly,

that is, without the consent of the provinces, to "patriate ''14 the BNA

Act, to attach to i t an amending formula, and also a Charter of Rights

and Freedoms. This provided the c a s u s bellE.

First, the "patriation" of the constitution would further erode the

Brit ish connection and thus increase the symbolic independence of

Canada; this by i t se l f would make i t easier for Francophones to accumu-

late trust in the national government. Patriation could possibly have

made i t more d i f f i cu l t for Anglophones to trust the government for the

very same reasons that made i t easier for Francophones to do so.

Patriation had, therefore, to be based on the assumption that the

Brit ish connection had become meaningless enough to most Anglophones

that a significant backlash would not develop as a result of further

erosion. Because the probability of a backlash was not fu l ly known, 15

Ottawa (and Ontario) immediately reasserted that the Queen of England

would remain Queen of Canada. The divisive nature of that symbol

notwithstanding, Ottawa acknowledged that only one decision at a time

could be made in these delicate matters.

Second, a formula -- other than unanimous consent -- to amend the

constitution would do at least two things. First, i t would make a-

mending easier; indeed, unanimous consent does not only give the right

of veto to every participant, but, more importantly, i t also eliminates

13To refer to the Prime Minister of Canada together with the provincial Premiers,

Canadians use the expression "First Ministers.,,

14"Patriatlon- is another Canadianism that refers to the transfer of the BNA Act from

the U.K. to Canada. it is now used in many other contexts.

15Earlier. Ottawa had proposed increasing the powers of the Governor General, without

reducing those of the British monarch. Because of the outcry this had created. Ottawa had

withdrawn and learned that Anglophone Canada was still very British.

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incentives to negotiate and to compromise and thus leads to

stalemates. Second, almost any amending formula favors marginal over

total changes. For a long time in Canada, many proponents of consti-

tutional change had been asking for an overall redrafting of the consti-

tution, in apparent disregard of the fact that the consequences of total

change cannot be evaluated ex ente. I t is possible that what I have

called the "separatist" view of Canada, which has histor ical ly been

wedded to a wholesale rewriting of the constitution, sensed that a total

change had at least a 50-percent chance of creating chaos and demanded

such a change for that very reason.

The ab i l i ty to amend the constitution in an orderly way through

marginal adjustments would do much to improve the relations of the

national government with the provinces. On the one hand, the inabi l i ty

of a province to know whether i t could block a particular amendment

would in i t se l f reduce posturing, since every posture would now have

possible undesirable consequences. On the other hand, issues unrelated

to the constitution would not be brought up every time a basic consti-

zutional matter was discussed.

Third, the Charter of Rights and Freedoms would not only improve

the relationship of individual Canadians v i sa vis their governments

and their bureaucracies, i t would do so through the mediation of a

federal inst i tut ion, the Charter, that would be given i ts real

strength 16 by a national body -- the Supreme Court of Canada. Let me

note br ief ly that the role and place of a Charter of Rights and Freedoms

in the Canadian constitution turned out to be the joker in the consti-

tutional game of 1980-81. The eight provinces that opposed Ottawa on

constitutional change opposed for a variety of reasons, but the Charter

was one of the more important. Several of the eight Premiers, sensing

the real possibi l i ty that Parliamentary Supremacy -- histor ical ly, an

important doctrine in the development of democracy -- would be eroded,

opposed as a matter of principle. Others opposed because the Charter

would bring citizens closer to their national government and therefore

would favor trust accumulation with Ottawa. ( I t is said that Ontario

161 discuss below the relationship of the Supreme Court to the Charter and, in

particular, how the impact of the Charter will be conditioned by the Court.

263

supported the Charter on the basis of an analysis developed in the

"Black Book, "17 which provided guidel ines to n u l l i f y i t s e f f ec t . )

In a parliamentary system of government, based on the pr inc ip le of

parliamentary supremacy, the place of a Charter of Rights and Freedoms

is doc t r ina l l y not obvious. But, in pract ice, a Charter attacks the

pr iv i leged posi t ion of po l i t i c i ans and bureaucrats as well as a l l the

e l i t e by giving power to the people. The stronger the Charter, the more

threatened are the e l i t e . I t is , therefore, easy to understand that

bureaucrats and po l i t i c i ans do not dra f t strong charters.

There are, nevertheless, two forces operating against th is tendency

of the e l i t e . One is the people themselves. In the 1980-81 ba t t le , the

people were brought into the picture almost acc identa l ly , 18 but once

they had been brought in they played a decisive ro le. The second force,

inherent in federalism, resides in the desire of governments at each

ju r i sd i c t i ona l level to possess ins t i t u t i ons that w i l l induce the people

to have t rus t in them. Once the immense popular i ty of a Charter had

been revealed, the federal government accepted that i t play a more

central role than had i n i t i a l l y been ant ic ipated.

Indeed, i t is f a i r to say that from the federal government's point

of view, everything in the Charter - - except l i ngu i s t i c r ights - - was,

in the beginning, negotiable. That posi t ion was the d i rec t consequence

of the dynamics of const i tu t iona l change in the struggle between

Quebec's " fede ra l i s t " and "separat is t " groups. I t is only when the

popular i ty of the Charter with a l l groups in the country became apparent

that the Charter began to play a much larger ro le.

New Brunswick and Ontario sided with Ottawa in the const i tu t iona l

ba t t le : New Brunswick, under Premier Hat f ie ld , completely and whole-

heartedly, Ontario, under Premier Davis, without taking the r isks that

would have been imp l i c i t had Ontario given const i tu t iona l status to the

17See M. Strauss (1983), p. 7.

18The word "accidentally. may or may not be appropriate. The people were brought

into the picture in response to maneuvers by the national Conservative opposition which

were not aimed at bringing the people on board but at stopping Prime Minister Trudeau and

the Quebec ,,federalist- forces from achieving their goal.

264

French language. 19 New Brunswick and Ontario are the two provinces in

Canada with the largest Francophone minorities, New Brunswick's minority

being relat ively much larger than that of Ontario. I t is not possible,

given their Francophone minorities, for these two provinces not to know

that all Francophones outside Quebec -- except a few hotheads -- share

the "federalist" view; and, more importantly, they know that unless the

"federalist" view of Canada wins in Quebec and, therefore, unless the

national government in Ottawa has the trust of Francophones, the

problems they wi l l have in dealing with their own l inguist ic minorities

wi l l simply multiply.

The other provinces of Canada, except Manitoba, do not have sig-

nificant Francophone minorities and consequently are less l ikely to have

perceived that the constitutional struggle was governed by two rival

Quebec philosophies about the place of Ottawa in the interests of

Francophones. I t is d i f f i cu l t to understand the position Manitoba chose

in the constitutional struggle and, indeed, Premier Lyon's successor,

who was to replace him before signatures were dry on the Constitutional

Agreement, has indicated that he would have sided with Ottawa. 2°

I suggest that another serious problem of the Canadian federation,

often labelled Western alienation, played v i r tual ly no role in the

constitutional struggle, because i t is not important in the battle

between the "federalist" and the "separatist" forces of Quebec. Brit ish

Columbia and Alberta, in particular, wanted a reform of the Senate that

would increase their places in the insti tut ions of the central govern-

190ntar io ls pos i t i on is easy to understand. I t is d i f f i c u l t , even impossible, to measure the depth of ce r ta in fee l ings such as ant isemi t ism, an t i ca tho l i c i sm , racism, and anti-Francophonism in a population. Poised between a desire to support the .federalist"

forces in Quebec and a possible backlash in Ontario if the French language became

constitutionally entrenched in that province, Premier Davis chose the easier route.

Entrenchment may or may not have produced a backlash, but it would certainly have given

considerable strength to the "federalist" forces in Quebec. That Ontario refused to

entrench language rights is supportive of the view that the place of Quebec in Canada will

be decided by Francophones with minimal help from Anglophones and others.

20One must agree with Alan Cairns' repeated statement that even if 'a logic of events

can be detected in the process of constitutional change, that logic would have been

different had different actors been in place. The description and analysis of forces at

work does not imply that the forces can produce only one outcome. See A. Cairns, (August,

]982 and September, 1982).

265

ment. The schemes they proposed were not l ikely to attract sympathy

from Ottawa, but their main fault was to address a problem of represen-

tation in a federal government in which Francophones were already well

represented. Had the federal government been as interested in devising

insti tut ions that would have induced Westerners to build more trust in

the national government, the Senate would have remained on the agenda.

Or, alternatively, i f Senate reform had been as popular with the popu-

lation at large as the Charter, i t would have remained in the dis-

cussions.

In this connection, I would suggest that the amendment to the BNA

Act regarding nonrenewable natural resources, which became part of the

f inal agreement, was the price paid by the federal government for the

support of the federal New Democratic Party and that that support re-

quired such a price only because the ruling NDP in Saskatchewan wanted

such an amendment. Had Saskatchewan been governed by another party --

another thing which happened before the ink was dry on the final agree-

ment -- the federal NDP would not have asked for the amendment and i t

would not have been part of the final package.

As a general remark, I would suggest that to understand the pattern

of bargaining, the evolution of the agenda, and the permanence of

certain items in the general turmoil, one must refer to the determi-

nation of the "federalist" forces of Quebec to build a new and stronger

link between Francophone Canadians and their national government

through insti tut ions that would permit greater accumulation of trust in

the federal government.

In the struggle between Quebec's "federalist" and "separatist"

forces, conducted as never before on a national theatre, can one explain

why Premier Levesque became the leader of the eight opposing

provinces? Or to put i t d i f ferent ly, can one explain how eight

provinces accepted a working document, 21 prepared by Quebec, which would

have stripped Ottawa of all independent authority and would have

transformed the Canadian federation into a confederal state? Quebec's

"separatist" forces had long held the view that Canada was a confederal

21proposal for a Common Stand of the Provinces: Quebec (1980).

266

state in which the constitutional powers held by Ottawa had been as-

signed by the provinces and could, therefore, be taken away by a uni-

lateral decision of those same provinces.

The provinces of Canada -- except for "separatist" Quebec -- had

never had strong views about whether Canada was federal or confederal.

Essentially for these provinces, Canada was a federation because of the

Francophones; had these vanished, a unitary state, such as the United

Kingdom, would have been ideal. Consequently, the decision by seven

provincial Premiers to opt for the "separatist" view was not a decision

to support that view direct ly but was governed in certain cases by

principles, in others by a desire to benefit from spoils, and in s t i l l

others by a feeling that their position could not be improved by any

constitutional agreement. From the point of view of any one of these

governments, what circumstance could be better than unanimity and,

therefore, veto power; and what could be gained by an attenuation of

Parliamentary Supremacy?

Premier Levesque was the leader in the battle against the "feder-

a l is t " forces, because he was the one who stood to lose most; and, in a

way, a l l players knew i t . Had the Supreme Court not removed the una-

nimity rule, 22 i t is not possible to know what would have happened. The

chances are high that the exercise would have ended in another fa i lure;

and a fai lure would have been a great victory for the "separatist"

forces in Quebec, because i t would have indicated to "federalist"

Quebecers that the federal government could not be relied upon to

safeguard and promote the interest of the Quebec Francophone in matters

as basic as language, culture, and l iberty.

4. LOOKING AHEAD

In their capacity to build trust, institutions can be derailed. For

example, the argument that the real cost of inf lat ion is the erosion of

22The removal of unanimity by the Supreme Court induced the provinces to negotiate.

The seven provinces which had sided with Premier L~vesque and Quebec in the struggle

against Ottawa lost no time in dropping him and in negotiating with Ottawa.

267

the trust that people have in their currency has strength. The way

insti tut ions are used and abused is therefore important. In this

section, I would l ike to examine br ief ly three questions that pertain in

a very direct way to the (part ial) resolution of the constitutional

struggles that have marked the last half-century of Canadian history and

to point to real.dangers ahead.

I t wi l l become obvious as the argument unfolds that, whatever view

I may hold with respect to the division of powers in terms of the ef-

f ic ient implementation of policies, I do believe that i t is very im-

portant that the insti tut ions of the national government operate to

induce Canadians to place trust in that government. 23 This is particu-

lar ly important for Francophones, but i t is important for all Canadians

and i t is for that reason that I referred above to the "part ial" reso-

lution of the constitutional issue in Canada. This does not mean that

Canadians should not trust public inst i tut ions at the provincial, local,

or private level, but the question is part icularly serious at the

national level. I t is at that level that divisiveness has more occasion

to manifest i t se l f . This is almost inevitable in a federation in which

the population is as heterogeneous as Canada's and in which the hetero-

geneity is increasing. The natural sorting-out of the population ac-

cording to preferences, a la Tiebout, implies that trustbuilding is more

d i f f i cu l t at the national level. Unless that issue is squarely

addressed, centrifugal forces eventually are l ikely to dominate.

The f i r s t question I wish to discuss is, in a way, the most d i f f i -

cult, but I must address i t , not only because i t is central to my con-

cern, but also because i t wi l l help give saliency to the case I am

trying to make. Let me call this f i r s t issue "the dilemma of conserva-

t ives," where conservative should be spelled with a small or a large c

depending on the matter discussed. I f one considers the trade-off

23The points of direct contact between the national government and the people are

few: customs, the post office, the police, social security payments, taxation, etc. In my

view, not enough attention is paid to the importance of these "meeting points" and to the

role they play in promoting "good,, or "bad" relationships between governments and

citizens. This may be the reason why one observes a post office that mislays a

substantial amount of mail, a taxation office that offers (uncouth) computers as

interlocutors, customs officers who unceremoniously spread out personal belongings when

one returns from abroad, etc.

268

mentioned earl ier, between power and force, i t is, I think, fa i r to say

that in considering the solution to pol i t ical problems, conservatives

give a larger role to force than do their counterparts. Conservatives,

therefore, do not place as much value on trust as do these

counterparts. I t is possible that this view which I impute to conserva-

tives derives from the position they hold with respect to the role of

governments in society, but that need not be necessarily so. I think

that one can believe in small governments but also believe that those

small governments should be trusted by the citizens. Whatever the

reason, the Progressive Conservative Party at the national level in

Canada has not, in the last f i f t y years or so, 24 given much consider-

ation to the development of insti tut ions at the national level that

foster trust in the national government.

This is really serious with regard to Quebec and i ts place in

Canada, because i t leads the party to adopt positions on nFrancophone

questions" that are detrimental to the building of trust in the national

government without resolving issues. I wi l l discuss the question of

opting-out below, but I can mention the Party's position on the "two-

nations ''2~ issue in the 1960s as an i l lust rat ion. That position of the

Party is possibly more serious when i t comes to Western Canada. What is

often called "western alienation" is purely and simply a manifestation

of a paucity of trust. That alienation wi l l not be removed except by

241t is true that during much of that time, the Party was in Opposition and that its

lack of imagination may have derived from that ~act. but one senses something deeper then

that.

25One of the tenets of the "separatist" doctrine in Quebec is that Canada is composed

of ,,two nations.,, Historically, the language has varied considerably: at one time the

expression was ,,two people,,, then it was "two races," later it became ,,two societies" or

"two cultures,,, Of the two words, only the first is important. Consequently, the

existence of ten provinces is seen either as an illusion or a ploy. Adherents have spent

much time redesigning the House of Commons, the Senate, the Supreme Court, and other

federal bodies to make them conform to this view of the country. A consequence of the

doctrine is that Francophone Canada is perceived to be homogeneous -- language as the

ultimate level~er -- end Anglophone Canada, also. But a much more important consequence

of the doctrine is that the government in Quebec City is the government of Francophones,

while the government in Ottawa is that of the Anglophones. In whatever form, those who

adhere to the ,,two nations,, mode~ accept the view that Ottawa cannot really be the

government of Francophoneso The "two nations" model is, in all its disguises, a

fundamentally separatist model.

269

i ns t i t u t i ona l changes that w i l l a l t e r the re la t ionship between western-

ers and Ottawa. Because the Conservatives current ly have the confidence

of the West, they are at present the only national party that can do

that job, but there is not the s l igh tes t indicat ion that the problem is

even perceived. In fac t , the rhetor ic points to the opposite.

The second question I wish to raise about the future pertains to

the role of the Supreme Court in the in terpre ta t ion of the Charter of

Rights and Freedoms. One year a f te r the proclamation of the new Consti-

tu t ion, there are over f i ve hundred cases related to the Charter before

the courts. There can be no doubt that Canadians had been wait ing for

that document with a passion and that they are looking to i t for redress

in a l l kinds of matters which h i ther to the i r governments had simply

imposed on them. The Charter is replete with terms such as "fundamental

jus t i ce , " "unreasonable delay," "unusual treatment or punishment,"

etc. These must be interpreted, and the l i on ' s share of that job w i l l

be up to the Supreme Court.

The question again is that of parl iamentary supremacy. I f , in a l l

the important cases coming before i t , the Supreme Court decides to

respect f u l l y the pr inc ip le of Parliamentary Supremacy - - and therefore

to re ject completely the other pr inc ip le of Judic ial Review - - i t w i l l

emasculate the Charter. There would, in my view, be two undesirable

consequences of such a decision: the f i r s t is that the t rus tbu i ld ing

capacity of the Charter would be demolished and an important cent r ipeta l

force destroyed; the second is that the t rus t which Canadians now have

in the Supreme Court would be adversely affected.

My th i rd concern is with the so-called "opting-out" with compen-

sation that is already in the Consti tut ion and which some proposals

would great ly extend. A r t i c l e 40 of the new Consti tut ion states that i f

provincial powers re la t ing to "education or other cu l tura l matters" are

transferred to the national government, Ottawa w i l l provide "reasonable

compensation" to any province that opts-out of the t ransfer . In other

matters, a province can opt-out but without compensation; there are,

therefore, great incentives not to opt-out with respect to noncultural

and noneducational matters.

I need not stress that opt ing-out, especia l ly with respect to

powers under which popular po l ic ies can be implemented, also represents

a t ransfer of the a b i l i t y to develop t rus t . There are other conse-

270

quences of opting-out with compensation -- not the least of which is to

place incredible power in the hands of Ontario which, i f i t opts-out,

guarantees that Ottawa wi l l not have enough revenue to undertake legis-

lation under the transferred power -- but the way i t relates to

trustbuilding is most important. Extending opting-out with compensation

would only serve to reduce the trustbuilding capacity of the national

inst i tut ions.

5. CONCLUSION

I have tried to develop a simple point, namely that without trust,

governing is more d i f f i cu l t , because i t requires greater use of force.

I have suggested that in a heterogeneous federal state the conditions

for trust accumulation are more d i f f i cu l t to devise with regard to the

national government. On the whole, I have noted that most provincial

governments in Canada were satisfied with a status quo that gave them a

veto on any change and in which Parliamentary supremacy was the para-

mount doctrine.

The Agreement of November 1981 was the outcome of a t i tanic

struggle between "federalist" and "separatist" views held by Quebecers

about the role of Ottawa in the governance of their affairs. The

"victory" of the "federalist" forces, well demonstrated by the increased

potential role of the national government in the collective affairs of

Francophones, wi l l help those same Francophones to have more trust in

the national government. Much remains to be done.

271

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(1978) The Economic Constitution of Federal States.

versity of Toronto Press.

Toronto: Uni-

Breton, A. and Wintrobe, R.

(1982) The Logic of

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Bureaucratic Conduct. Cambridge University

Cairns, A.

(1982) The Politics of Constitution-Making: The Canadian Experi-

ence. Mimeo, University of Brit ish Columbia.

(1982) The Politics of Constitutional Conservatism. Mimeo,

University of Brit ish Columbia.

Hamilton, A., Jay, J., and Madison, J.

(1937) The Federalist. New York: Modern Library.

Laidler, D. and Rose, N.

(1980) George Simell's Philosophy of Money: A Review Article for

Economists. Journal of Economic Literature, 18: 97-105.

Ostrom, V.

(1971) The Political Theory of a Compound Republic. Blacksburg:

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Quebec

(1980) Proposal for a Common Stand of the Provinces: Quebec.

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Docu-

Salmon, P.

(1983) Savons-nous enfin quelqu e chose

Analyses de la S.E.D.E.I.S., 32: 9-15.

de la bureaucratie?

272

Sheppard, R. and Valpy, M.

(1982) The National Deal: The Fight for a Canadian Constitution.

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Strauss, M.

(1983) Doubts Fade, Hopes Rise for the Rights of Canadians. The

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