"I don't think Canadians are going to sit still and let it happen": The New Brunswick Ad Hoc Committee on the Constitution and Citizens' Response to the Meech Lake Accord

by

ASC Hampton

BA, Mount Allison University, 2005

A Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of

Master of Arts

in the Graduate Academic Unit of History

Supervisors: Margaret Conrad, PhD., Department of History Donald Wright, PhD., Department of Political Science

Examining Board: R. Steven Turner, PhD., Department of History, Director of Graduate Studies, Department of History Donald Desserud, PhD., Department of History and Political Science, University of New Brunswick Saint John Margaret Conrad, PhD., Department of History Linda Kealey, PhD., Department of History Donald Wright, PhD., Department of Political Science

This thesis is accepted by the Dean of Graduate Studies

THE UNIVERSITY OF NEW BRUNSWICK

January, 2008

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•+• Canada Abstract

This thesis explores the response of citizens to the Constitution Amendment, 1987, commonly the Meech Lake Accord, by focusing on the activities of the New Brunswick Ad Hoc Committee on the Constitution. In so doing, it examines two under researched historiographical areas: the response of citizens to the Accord, particularly in New Brunswick, as well as the history and structure of second wave feminism in New Brunswick. Following the model used by constitutional historian Michael D. Behiels, this thesis employs a "bottom-up" approach to constitutional developments and arrives at the following conclusions: First, there was a profound difference in constitutional understanding between the governing elite who negotiated the Meech Lake Accord and the citizens who opposed it. This argument draws heavily on the work of political scientist Alan C. Cairns. Second, both the distinctive structure and philosophical outlook of the Ad Hoc Committee emerged from the practices of second wave feminism. Third, the actions of citizens' groups like the Ad Hoc Committee played an important role in the failure of the Accord and have had a profound impact on constitution-making in Canada.

ii Acknowledgements

First, I owe a great debt of gratitude to those who have shared their time, knowledge and memories in aid of this project through research interviews. The surviving members of the NBAHCC who I interviewed were the core of the organization. Without their

insights this thesis would have been impossible. This is especially true of C. Anne

Crocker, who donated her files on the NBAHCC to the University of New Brunswick

Archives. I must also thank those who lobbied the government on behalf of other

organizations for sharing their experience in the anti-Meech movement. In order to present a balanced account of the Meech Lake years, it was essential that I understood the issues from the perspective of those in government. They offered first-hand knowledge of the Accord through all its many stages, as well as perspective on the

politicians we alternately credit and blame for Meech Lake. I would like to extend

additional thanks to those who, for technical reasons, had to be interviewed a second time.

A number of people, while not interviewed, shared their perspective with me through informal conversation. Nancy Janovicek's knowledge on the historiography of

second wave feminism in New Brunswick is tremendous. She was kind enough to telephone me from Calgary to discuss my research. Historian Michael D. Behiels

corresponded with me during my studies and offered many helpful insights, both as a historian and as an opponent of the Accord. Historian Penny Bryden nurtured my interest in constitutional history during my undergraduate career at Mount Allison

iii University and first suggested I look at the work of Alan C. Cairns. As ever, I am in her debt.

The difficult task of research would have been impossible were it not for the aid of many people. Wendy Johnston at the NBACSW guided me to relevant Council documents and allowed me to photocopy them free of charge. Tom McCaffrey of the

Government Records Branch at the PANB offered invaluable assistance from the very start. Once a topic is researched it must be developed into something worth reading. My colleague in the MA History programme at the University of New Brunswick, Patrick

Webber, was always eager to discuss my research and offer his opinions and suggestions. I wish him the best of luck in his own research. Without my supervisors,

Margaret Conrad and Donald Wright, this project would have wandered astray many times. My writing and research have improved greatly as a result of their patience, perception and advice. I have learned much from them and I thank them both.

Most importantly, I wish to thank my wife Alexandra. She was always encouraging when I felt discouraged. She showed enormous patience when I pressed discussion of the minutiae of constitutional history. Above all, she put off the furthering of her own education for a year, toiling to support us. This thesis is dedicated to her.

iv Table of Contents

Abstract ii

Acknowledgements iii

Table of Contents v

Abbreviations vi

Introduction 1

Chapter One: Historiography and Methodology 13

Chapter Two: The Long Road to Meech Lake: Executive Federalism and Constitution- making in Canada 30

Chapter Three: "They spring up like mushrooms": Ad Hoc Committees and Citizens' Group Activism 59

Chapter Four: Consciousness-raising, Committee Hearings and a Conference: The Ad Hoc Committee Lobbies the Government 80

Chapter Five: "McKenna has really sold us down the river." 115

Conclusion 160

Bibliography 170

Appendix A: List of Submissions to the SCNBLA 180

Appendix B: Meech Lake First Ministers' Communique 191

Appendix C: Motion for a Resolution 194

Appendix D: Schedule Constitution Amendment, 1987 195

Appendix E: Final Communique, First Ministers' Meeting on the Constitution, 9 June 1990 202

Curriculum Vitae

v List of Abbreviations

AHCWC Ad Hoc Committee of Women on the Constitution

APEC Alliance for the Preservation of English in Canada

CACSW Canadian Advisory Council on the Status of Women

CoR Confederation of Regions Party

LEAF Women's Legal Education and Action Fund

MLA Member Legislative Assembly

NAC National Action Committee on the Status of Women

NBACSW New Brunswick Advisory Council on the Status of Women

NBAHCC New Brunswick Ad Hoc Committee on the Constitution

PANB Provincial Archives of New Brunswick

UNBA University of New Brunswick Archives

RCSW Royal Commission on the Status of Women

SAANB Societe des Acadiens et Acadiennes du Nouveau Brunswick

SCNBLA Select Committee of the New Brunswick Legislative Assembly on the 1987 Constitutional Accord

This thesis makes reference to many committees. Any mention of the Committee (capitalized) refers to the New Brunswick Ad Hoc Committee on the Constitution. All other committees are either differentiated and spelt with a lower-case c (i.e. the Prince Edward Island committee) or referred to by one of the abbreviations above.

vi Introduction

The years 1987 to 1990 marked one of the most fascinating periods in Canadian constitutional history. During these years the debate over the Meech Lake Accord, a constitutional amendment package agreed upon by the first ministers, raged across the land. The Accord was designed to gain Quebec's acceptance of the 1981 repatriation of the constitution. The most important section of this agreement, the "distinct society clause," re-defined Canada as a community of two peoples, one French speaking and the other English speaking. It also redistributed a number of powers from the federal to the provincial governments. In this sense the Meech Lake Accord redefined the Canadian federation. Although the governments sought largely to exclude them, a variety of citizens' groups demanded a part in the constitutional exercise. They believed that the constitutional status quo, established with the repatriation of the constitution and the introduction of the Charter of Rights and Freedoms, was threatened. The New

Brunswick Ad Hoc Committee on the Constitution (NBAHCC) was one of those groups.

Its story is exemplary of the larger experience of citizens' advocacy groups during the

Accord debates, but also particularly fascinating because of its structure and place at the centre of Meech Lake opposition in New Brunswick.

Ultimately the Meech Lake Accord was not ratified. The debate over the agreement, however, is essential to an understanding of constitutional history. Despite its failure, an amendment effort as far reaching as the Accord still had deep and lasting effects upon the country. Political scientist Peter Russell argues that "mega- constitutional politics" become all-consuming affairs, taking up more and more of the

1 nation's attention, eventually coming to dominate the political agenda. The process goes beyond making specific or piecemeal changes to a constitution. Rather, this kind of constitutional change has at its very heart questions of national identity and purpose.

Such debate almost always becomes emotionally charged, heavy with symbolism and even runs the risk of breaking a country apart. The dramatic nature of large mega- constitutional politics attracts constant media attention and becomes an unavoidable issue for the people of the effected nation, their attention fixed on events as they unfold.

The Meech Lake Accord fits this definition of Russell's mega-constitutional politics. In a 1988 interview, New Brunswick Premier Frank McKenna described how the issue of the Accord's ratification weighed on him:

It's just an issue that's always present like a suffocating weight. It's such an important national issue that I'm conscious every minute of the day of the responsibility we carry in New Brunswick. Our attitude is not cavalier. We're not cowboys on this issue. We find it a serious, difficult issue. It isn't clear-cut. And it is troubling.2

The politicians were not the only ones who felt a sense of fatigue. Gayle MacDonald, a member of the NBAHCC, summed-up the feelings of many who opposed Meech Lake by the end of the three-year debate: "we were exhausted."3

This exhaustion is hardly surprising given the importance of citizens' groups in the history of the Accord. During the Meech Lake round, citizens' groups demanded inclusion in the traditionally elite-dominated field of constitutional politics.4 This

1 Peter H. Russell, "The End of Mega Constitutional Politics in Canada?" PS: Political Science and Politics, 26.1 (March, 1993), 33-37,33. 2 David Hatter, "Taking long-term view of Canada's interests," Financial Post, 21 December 1988,12. Gayle MacDonald, interview with author, 11 June 2007. Mega-constitutional history in Canada is traditionally divided into "rounds" corresponding to the constitutional effort that precipitates a given burst of political activity. For example, the constitutional

2 demand was rooted in the experience of the 1980-81 repatriation round. The federal government had proposed an entrenched charter of rights in their draft constitution, which the governing Liberals referred to as the "people's package." Citizens' groups were enthusiastic about the proposed Charter of Rights and Freedoms and the extensive public hearings held to discuss the form it should take. Through committee hearings, citizens' groups pressured the federal government into making a number of changes to the Charter. For the women's movement the committee hearings related to the "taking of twenty-eight," which was particularly significant.5 Feminists banded together to force the federal government to honour its promise of gender equality rights. In so doing they helped forge what political scientist Alan C. Cairns has described as a "citizens' constitution." This enforced the idea that the people had a critical role to play in constitution-making. This sense of constitutional ownership was especially strong for those Canadians whose rights were explicitly protected in the Charter: the disabled,

Canadians of cultural backgrounds other than British or French, Aboriginal Canadians and women. It was not until the Meech Lake Accord, however, that this sentiment "came home to roost."

The conviction on the part of ordinary citizens that they had a rightful place at the constitutional table is essential to an understanding of why the Meech Lake round was so remarkable. Constitution-making up to the repatriation round was characterized by the practice of executive federalism, or the exclusive negotiation among government talks from 1969-1970 that ended in the Victoria Charter are called the Victoria round; the repatriation effort is called the repatriation round. The period from 1987-1990 is generally referred to as the "Quebec round," as the intention behind the Meech Lake Accord was to bring Quebec back into the "constitutional family." It has also been called, often with derision, the "provincial round" and even the "men's round." To eschew unnecessary editorial comment on the Accord and for the sake of clarity, this thesis will refer to the period of mega-constitutional politics from 1987-1990 as the "Meech Lake round." See Penny Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (Toronto: The Women's Press, 1983).

3 leaders or their appointed bureaucrats. Even the repatriation round, with the exception of the Charter of Rights and Freedoms, was largely the preserve of the first ministers and their delegates. The Meech Lake Accord was negotiated with even less public consultation. The public only became aware that a major constitutional amendment was under discussion when the first ministers met in April 1987. It was at the end of this meeting that the general terms of the Accord were announced.

Citizens' groups that were a part of the more public repatriation process were quick to oppose the "secretive" executive federalism by which the Meech Lake Accord was crafted. Federal parliamentary hearings on the Accord were rushed. They left unsatisfied many who wished to express their concerns about the agreement. Moreover, the hearings left them convinced that the first ministers were trying "to pull the wool over their eyes" and keep Canadians from their rightful place at the constitutional bargaining table. The same groups that felt constitutionally enfranchised by the repatriation process felt they had been left out in the cold at Meech Lake. They were determined to have their say and have the Accord modified, or else rejected entirely.

Although the individuals active in these organizations were not part of the constitutional elite (meaning elected officials such as cabinet ministers or their top bureaucrats), they tended to be from the elite of society: highly educated and belonging to the professional classes, often affiliated with universities. Part of the success of groups like the NBAHCC is that they were run by educated and, often, politically connected individuals. These citizens' organizations were still outsiders as far as traditional Canadian constitution-making was concerned, but they had political clout and waged a professional campaign of opposition to the Accord. As a result of their resistance to Meech Lake, constitution-making in Canada was changed. As a part of this

4 phenomenon, the NBAHCC is notable, but its historical importance goes beyond its inclusion in a long list of organizations that opposed the Meech Lake Accord.

By studying a group such as the NBAHCC, this thesis will help to fill two gaps in the historiography of the Accord. The first gap concerns the paucity of study on New

Brunswick's role in the history of Meech Lake. The province's place in the Meech Lake

story is an important one. In 1987 an ad hoc committee formed in almost every province but few remained active. The New Brunswick Committee was an important exception.

Every provincial government and the federal government were originally committed to

Meech Lake. In October 1987, however, the Progressive Conservative government of

Richard B. Hatfield lost every seat in the New Brunswick Legislative Assembly. The new premier, Liberal Frank McKenna, had articulated his unease with the Accord prior to the election, even appearing before a Parliamentary committee to express his

concerns. After the election, McKenna refused to ratify Meech Lake unchanged and for

a time New Brunswick was the only province withholding its consent. For the Accord to take effect, unanimous provincial consent was required. National attention was focused

on the New Brunswick government as well as the citizens' groups working to convince

McKenna to force a re-negotiation of the Accord. Although some studies have been

conducted on citizens' group opposition to the Accord, these tend to focus on central

Canadian examples.6 By virtue of the political circumstance in New Brunswick, the

NBAHCC played an important role in the Meech Lake story and deserves academic

study.

Alexandra Dobrowolsky has authored an excellent study of feminist constitutional activism including the Meech Lake period that focuses on groups based in Toronto and Ottawa. See Alexandra Dobrowolsky, The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada (Don Mills: Oxford University Press, 2000).

5 While many existing organizations - from First Nations bands and multicultural councils to unions and community service clubs - took a stand on the Accord, the

NBAHCC is exceptional in its singular opposition to Meech Lake. It formed with the express purpose of derailing the Accord's ratification in New Brunswick. When Meech

Lake finally failed, the Committee disbanded. The NBAHCC also had a unique membership. Active "ad hocers" had different political affiliations and came from a variety of professional backgrounds. The ad hoc committee structure encouraged a fluid

membership and the inclusion of as many members as possible. As a result, participants

in other organizations could easily take part in the Committee's activities. Many of those

individuals belonged to other organizations that also took a position on the Accord,

aiding in the flow of information between various groups in the province. While

NBAHCC was a unique organization because of its position as the only specifically anti-

Meech organization in New Brunswick, it is part of a much broader story of citizens'

group activism in Canadian constitution-making.

The history of such citizens' groups is often ignored in accounts of Meech Lake,

in favour of the more familiar constitutional territory of elite accommodation. This

constitutes the second gap in the historiography this thesis addresses. Part of what makes the Meech Lake round so interesting is the way in which citizens responded to their governments' attempt to amend the constitution of Canada in the customary way.

Canadians indicated over and over again that they felt the traditional process was unacceptable. Despite this stand, popular accounts of the Meech Lake process - journalist Andrew Cohen's, for example - have tended to approach the subject in the traditional manner of constitutional historiography: by recounting the story from the

6 perspective of the governing elite.7 This project focuses on the history of the Meech

Lake Accord from the perspective of a New Brunswick citizens' group.

This approach is inspired by Michael D. Behiels's 2004 monograph, Canada's

Francophone Minority Communities, in which he examines how Francophone

Canadians outside Quebec fought for language rights.8 Behiels explores these issues from the perspective of the Francophone community organizations that lobbied the government for protection of their rights and their schools. This differs from the traditional approach, which focuses on how government officials made decisions about

Francophone minority rights through a process of elite accommodation. This thesis takes the same approach with the historiography of the Meech Lake Accord.

The analysis will not focus on the NBAHCC in isolation; it will also explore the governing elite perspective and contrast it to that of the Committee. The Meech Lake

Accord was the product of elite accommodation and inclusion of this history is essential to an understanding of the Accord. The secretive negotiations that were part of the

Accord's origins were also a motivating factor for many - including the Committee members - to oppose the Accord. In addition, the strong ties many in the NBAHCC had to the Liberal government of New Brunswick makes the government side of the story all the more important. In the combination of these two perspectives, as well as an exploration of their irreconcilability, this thesis takes as broad a perspective as possible.

To understand those perspectives, this thesis draws heavily on eight research interviews conducted between March and July of 2007. Surviving core members of the

Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Toronto/Vancouver: Douglas & Mclntyre, 1990). Michael D. Behiels, Canada's Francophone Minority Communities: Constitutional Renewal and the Winning of School Governance (Montreal/Kingston: McGill-Queen's University Press, 2004).

7 NBAHCC - C. Anne Crocker, Gayle MacDonald, and Max Wolfe - were asked about the reasons for their opposition to the Accord and their participation in the Committee, while Donald Dennison and Barry Toole, both of the Cabinet Secretariat/Ministry of

Intergovernmental Affairs, were interviewed on the government's perspective. An interview was also conducted with former ML A Jane Barry, Co-Chair of the Select

Committee of the New Brunswick Legislative Assembly on the 1987 Constitutional

Accord (SCNBLA) and a member of the McKenna government. Willi Evans Wolfe provided perspective as an individual who worked on the edge of the NBAHCC, but also participated in the New Brunswick Women's Institute campaign to oppose the Meech

Lake Accord. Finally, historian Stephen E. Patterson also had connections to the

NBAHCC, but was part of a high-profile national organization that opposed the Accord, the Canadian Coalition on the Constitution; he also offered his point of view as a historian. The research interviews were essential to this thesis and an understanding of the Committee.

This study of the NBAHCC draws the following conclusions about the

Committee and its place in history. First, there was a profound disconnection between the expectations of those who joined citizens' groups such as the NBAHCC to oppose the Meech Lake Accord and the governing elite who negotiated and defended it. The governments that negotiated the Accord did not anticipate the wave of opposition that arose because ordinary Canadians felt they had a rightful place at the constitution- making table. Second, the ad hoc committee was very much a product of second wave feminism. The structure that the NBAHCC "inherited" from the women's movement was a highly effective way to organize a constitutional lobby, and, consequently, the

NBAHCC is an important part of feminist and constitutional history. Finally, it is clear

8 that as a result of the action carried out by citizens' groups during the Meech Lake round that Canadian constitution-making was changed forever. The traditional route of

executive federalism was discredited in the eyes of the Canadian public and this,

ultimately, was the reason behind the discontinuation of mega-constitutional politics in

Canada that has continued to the present.9

Chapter one focuses on the historiography and methodology behind the research

of this thesis. In addition to the bottom-up approach pioneered by historian Michael D.

Behiels, this analysis is informed by the work of political scientist Alan C. Cairns. His

theory of the bifurcation of Canadian constitutional understanding into citizens' and

governments' constitutions following repatriation helps explain the difference in

perception between the activist public that opposed Meech Lake and the governments

that attempted to ratify it. The work of others who have written on the Meech Lake

Accord, such as Patrick Monahan, Andrew Cohen, Michael D. Behiels, and Alexandra

Dobrowolsky, are also discussed in this chapter.10

The second chapter explores the constitutional background of the Meech Lake

Accord, including the history of constitution-making in Canada, the role of executive

federalism within that history, and the growing interest of the general public in

constitution-making. The various attempts at repatriation of the constitution are

explained with particular emphasis on the successful repatriation round. Since Quebec's

refusal to agree to the 1981 constitutional agreement was the motivation for the Meech

The Meech Lake round was immediately followed by the Charlottetown or Canada round. This was a direct outgrowth of the Meech Lake Accord's failure. The subsequent failure of the Charlottetown Accord at the hands of the Canadian people in a referendum may be seen as evidence of the cynicism towards mega-constitutional politics as a result of the Meech Lake experience. 10 Patrick Monahan, Meech Lake: The Inside Story (Toronto: Univeristy of Toronto Press, 1991), Michael D. Behiels, ed., The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord (Ottawa: University of Ottawa Press, 1989).

9 Lake Accord, the reasons behind that refusal are examined. The second chapter includes

an explanation of the conditions that made negotiation of the Accord possible and

recounts the negotiation process. Finally, this chapter offers an examination of the

Meech Lake Accord itself with a section-by-section explanation of the amendment

package.

Chapter three focuses on the place of citizens' groups in constitutional history

and the origins of the NBAHCC. The Committee was closely related to second wave

feminism in Fredericton, New Brunswick and across Canada. This chapter explores the

origins of second wave feminism in Fredericton and the ad hoc structures that were used

by feminist organizations in other campaigns to influence constitution-making. From the

perspective of citizens' groups, the Charter of Rights and Freedoms was the centrepiece

of the repatriation project in 1981. Feminists successfully used the ad hoc structure to

include and later strengthen gender equality rights in the Charter. Feminists also took

part in the Parliamentary committee hearings process that helped shape the Accord. The

success of citizens' groups in influencing the Charter of Rights and Freedoms, as well as

the enshrining of individual rights in the Charter, captures the notion of a citizens'

constitution which emerged out of the repatriation round. By comparison, the rigid and

government-dominated amending formula in the Constitution Act, 1982 expresses the

governments' constitution that was the perspective of the constitution-making elite. This

exclusive process was the taproot of opposition to Meech Lake by groups like the

NBAHCC. The chapter concludes with brief profiles of the core members of the

Committee.

The fourth chapter traces the activities of the NBAHCC in its first eighteen

months of operation. This chapter will explain how the core members of the NBAHCC

10 came to be involved in the organization. Building on the brief profiles in the previous chapter, it describes the roles played by each of these central figures on the Committee.

The first meetings of the NBAHCC and the subsequent campaign designed to raise public awareness are examined. A discussion of how the fluid ad hoc structure worked

to the committee members' benefit as they sought to engage New Brunswickers across

the province is also included. A major part of the Committee's efforts was a day-long

conference held in Moncton to raise public awareness of the issues around the Accord

and an account of this meeting is included. The chapter will also explore the connections

between the NBAHCC and the provincial government. The government's story is an

inseparable part of what occurred during the Accord debate and government deeds

provided the impetus for many of the actions of the Committee. Bringing these two

strands together, this chapter will conclude with the NBAHCC s appearance before the

SCNBLA, with a detailed discussion of the brief they submitted. Finally, an explanation

of how and why that government committee came to be and its role in the history of

Meech Lake is included.

Chapter five will pick-up the NBAHCC s story following its appearance before

the SCNBLA. The Committee continued to lobby the government through a mass-

mailing campaign. With the publication of the New Brunswick government committee's

report, however, the NBAHCC became disenchanted with the McKenna government. In this same period, political events in other provinces had major effects on the course of the Meech Lake debate. New Brunswick Premier Frank McKenna also launched his

"companion resolution" to the Accord in an attempt to salvage the agreement. The fifth chapter examines the shift in McKenna's position and the NBAHCC s reaction to the proposed resolution. A federal committee was struck to examine the companion

11 resolution. The NBAHCC prepared a brief for that committee's hearings. This constituted the last major effort of the Committee and a discussion of the brief is included. This is followed by an examination of the events that led to the failure of the

Meech Lake Accord. Finally, chapter five concludes with a look at the effects of the

Accord's breakdown on Canada and New Brunswick.

The NBAHCC is an important part of the history of the Meech Lake Accord. It symbolizes the change in Canadians' expectations of political involvement in constitution-making. The Committee demonstrates the importance of the ad hoc structure in the history of Canadian feminist and political history. That structure is symbolic of the NBAHCC s origins in second wave feminism and the importance of this movement to Canada's constitutional history. As well, groups like the NBAHCC have changed the way executive federalism and constitution-making are practiced in Canada.

The history of the Committee is all the more important because it was based in New

Brunswick, which, as Canada's only bilingual province, brought a unique perspective to the constitutional bargaining table and was at a critical stage in its political history, dealing with sensitive issues of bilingualism and Francophone rights. Meech Lake was intended to unify the country by including Quebec in the constitutional settlement of

1981-82. Instead, it became a flashpoint for debate about the nature of the Canadian federation. The NBAHCC is not only symbolic of the opposition the agreement faced, but also an important element in the history of the Meech Lake Accord.

12 Chapter 1

Historiography and Methodology

This chapter addresses the historiography informing my research on the New Brunswick

Ad Hoc Committee on the Constitution. After situating this research project in its historiographical context, I will describe my own position on the Meech Lake Accord and its place in my research. Debate over the Accord polarized many in Canada and gave rise to ugly public displays. For that reason I feel it is important to elucidate my own position on the 1987 amendment package. I will also analyze the work of other historians, much of which was completed during the three year ratification window.

Many historians and other academics entered the political fray and their work on the

Accord at the time and subsequently provides the foundation for this study.

Three historiographic approaches have been used to inform my research and are outlined in this chapter. First, I will explain my application of the "bottom-up" historiography of constitutional history taken from Michael D. Behiels. An effort is made to contrast this historiographical method to traditional constitutional history with its focus on the governing elite. The second major approach used here is that of political scientist Alan C. Cairns. According to Cairns, Canadians who felt constitutionally enfranchised by the Charter of Rights and Freedoms were angered at their exclusion from the development of the Meech Lake Accord. The third academic is political scientist Alexandra Dobrowolsky, who has authored an account of women's participation in Canadian constitution-making. Like Behiels, she focuses on the non-elite aspect of constitution-making. Finally, this chapter will describe the importance of the

13 women's movement to the story of the NBAHCC and feminist constitutional

historiography to this research project.

This study is an exercise in "constitutional history." It differs in its approach

from more traditional constitutional history, however, in that it does not focus on the

governing elite or tell a story of elite accommodation. When Lawrence Stone sought to

define traditional history vis-a-vis the new social history of the latter twentieth century,

he wrote that such history's "prime subject matter... was defined as the administrative

and constitutional evolution of the nation state and the diplomatic and military

relationships between those states."1 Constitutional history belonged to the dominant

historiographical schools that, after a hundred years in the limelight, were to be shunted

to the sidings so that those hitherto neglected areas of human existence and endeavour

might be subjected to historical inquiry. New historical vantage points were explored:

history from the bottom up meant exploring the experiences of women, the working

class, minorities, and the marginalized. An examination of constitution-making from

new, non-governmental perspectives provides an opportunity for historians to breath

new life into constitutional history.

An account of the Meech Lake Accord that ignored the important role played by

citizens' groups would fail to tell the whole story, as well as ignore one of the most

interesting facets of that constitutional round. A history driven only by the concerns of

the masses would be similarly inadequate. While this thesis focuses on the NBAHCC,

the story would be incomplete were I to totally ignore the process at the elite level. In

this sense, constitutional history is bettered by a many-sided historiographic approach.

1 Lawrence Stone, "History and the Social Sciences," in Charles F. Delzell, ed., The Future of History: Essays in the Vanderbilt University Centennial Symposium on the Future of History (Nashville: Vanderbilt University Press, 1976), 5.

14 Such an approach, through the provision of constitutional background information and the inclusion of governmental events is, in part, the aim of this research project.

The biases of a historian will affect his or her work, and an issue as politically charged as the Meech Lake Accord is certainly no exception. While I have endeavoured to keep my writing on the Accord free of overt personal sentiment, I feel it is important to state my own point of view. The substance of the Meech Lake Accord divided

Canadians during the three year period in which it was actively debated. The goal of the

Constitution Amendment, 1987 was to bring Quebec back into the constitution. As a result, opponents of the Accord were sometimes labelled anti-French or anti-Quebec by those seeking to defend it, including Prime Minister Brian Mulroney.2 The debate over the Meech Lake Accord did include some incidents of anti-French protest. In September

1989 a Quebec flag was desecrated in Brockville, Ontario, at a protest by the

"Anglophone rights" group Alliance for the Preservation of English in Canada. Some municipalities, most notably Sault Ste. Marie and Thunder Bay, Ontario, in January and

February of 1990 respectively, also declared themselves to be officially English.4 By and large, however, remarks like those of the Prime Minister were political strategy aimed at isolating and de-legitimizing opponents of the Accord regardless of the substance of their objections. The three surviving core members of the NBAHCC whom I interviewed were careful to indicate their support for the advancement and protection of

Francophone culture and, in a majority of cases, their own bilingualism.5

2 David Taras, "How Television Transformed the Meech Lake Negotiations," in David E. Smith, Peter Macinnon and John C. Courtney, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishing, 1991):169-180. 3 Patrick Monahan, Meech Lake: The Inside Story (Toronto: Univeristy of Toronto Press, 1991), 174-175. 4Monahan, 185-186. C. Anne Crocker, interview with author, 22 March 2007; Gayle MacDonald, interview with author, 19 April 2007; Max Wolfe, 5 April 2007.

15 It is not my goal to review or critique the terms of the Constitution Amendment,

1987.1 have sought to cast neither opponents nor defenders as villains. Engaging in an active evaluation of the Accord would necessitate declaring one side or the other as the

"bad guys." The thesis of my research, however, is not that the Meech Lake Accord was a terrible idea or a tragedy of missed opportunity. The goal of this project is to tell more of Canada's constitutional history from below, as Behiels and Dobrowolsky have done, enlarging the historical narrative of the Meech Lake Accord in New Brunswick and citizens' efforts to affect the constitutional history of Canada. Interconnected with this aim is the application of Cairns' citizens' constitution theory applied at a micro level to the NBAHCC. While both of these require an understanding of the Meech Lake Accord, neither demands the researcher take a position on the Accord itself.

Keeping the council of historian Veronica Strong-Boag, I have endeavoured to remember that historians "are required to interrogate ourselves and our founding assumptions."6 My personal feelings on the Accord were mixed at the outset of this project, and they have remained so. In the beginning, however, I was significantly more negative about the entire agreement than I am now. The principle reason for this position was the manner in which the amendment package was negotiated - largely in secret among the first ministers. Moreover, the decision of the government not to allow any changes to the Accord following only two negotiation sessions, and before all but one province had held hearings, struck me as undemocratic, particularly when compared to the more open experience of repatriation in 1981.1 was also leery about the decentralizing potential of the Accord, especially in the area of immigration policy. Like

6 Veronica Strong-Boag, "Presidential Address: Contested Space: The Politics of Canadian Memory," Journal of the Canadian Historical Association, 5.1 (1994): 3-18.

16 many Canadians from Ontario (at least until recently), I tend to feel more confident in the abilities of the federal government to manage public affairs than others, especially

Quebeckers, do. I am often suspicious of provincial governments and the potentially dangerous effects of decentralization.

My feelings on the Accord remain mixed, but I now feel the important question is not whether Canada is better off without the Accord, an impossible question to answer, but rather which would have done less harm, the failure of the Meech Lake

Accord or its passage un-amended? Peter Russell writes that the "threshold question about the Meech Lake round of constitutional politics is whether it could have been avoided."7 In my opinion, the goal of including Quebec in the constitution once more was a noble one, and necessary for future constitutional development. The principal reason behind the repatriation of the constitution in 1981-82 was re-defining

Confederation in a way that would make all parties - especially Quebec - happy, allowing Canada to attend to other matters. Given that Quebec did not sign the constitution, this goal was not achieved. Where the blame lies for that failure is another question entirely, but there were matters arising from the repatriation round requiring a return to constitutional talks. Moreover, it strikes me as naive to believe that the inclusion of Quebec could have been accomplished without transferring some jurisdictional authority. I have no great objection to some form of modest asymmetrical federalism of the kind Gordon Robertson recommended in the aftermath of the Accord's collapse.8 The federal government's strategy of offering to the other provinces whatever

7 Peter Russell, Constitutional Odyssey (Toronto: University of Toronto Press, 1992), 127. 8 See Gordon Robertson, Does Canada Matter: The 1990 Kenneth MacGregor Lecture (Kingston: Institute of Intergovernmental Relations, Queen's University, 1991), 9-12.

17 it offered to Quebec (apart from the distinct society clause) by way of new powers was a non-starter, however, for those who believed in a strong central government for Canada.

In my estimation the federal government made a number of errors in their handling of the Meech Lake Accord. I still feel that the secrecy in the federal government's approach was problematic. Notwithstanding this objection, I find it hard to disagree with the opinion of the former New Brunswick Deputy Minister of

Intergovernmental Affairs, Barry Toole, that "Meech Lake was a much more fragile premise than [repatriation]."9 It is probably true that the delicacy required in this task of constitutional fence mending would have been nearly impossible with great public input, especially at the negotiation stage. That said it was a mistake to allow so little consultation on the proposals once they were made. As Alan C. Cairns highlights, the federal government offered virtually no documents defending its position - or even articulating the reasoning behind its decisions - relying on the rather lame excuse that

"position papers would be superfluous because, after all, our history of recent decades is littered with constitutional discussions and proposals of which this is simply a culmination."10 This lack of explanation, coupled with a total unwillingness to address what many considered substantial flaws in the Accord, strikes me as a political miscalculation. For example, the inclusion of Section 28 (equality of the sexes) of the

Charter in Section 16 (the non-derogation section) of the Accord would have been a relatively easy change to make and might have assuaged the fears of many women's groups. In my opinion the Meech Lake Accord would have been salvageable with a few

Barry Toole, interview with author, 5 June 2007. 10 Alan C. Cairns, "Federalism and the Provinces," in Alan C. Cairns; Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991):139-147, 141-142.

18 changes, although I am uncertain that it would have been in the best interest of the country to proceed with the agreement as it was negotiated.

I have become convinced that the loss was not the Accord itself. Rather, the failure of Meech Lake, coupled with the failure of the Charlottetown Accord, removed much of the willingness of Canadians and their politicians to openly and constructively discuss the constitution and the nature of federalism. Both Barry Toole and Donald

Dennison, who served as an intergovernmental affairs officer and later Deputy Minister during the Meech Lake and Charlottetown rounds, felt that the greatest loss as a result of the failure of Meech Lake was the end of ambition in the intergovernmental affairs arena. Dennison commented on the long-term consequences of this failure: "I think the

costs are almost incalculable in terms of lost confidence of Canadians about their polity, their country and their political leadership; lost confidence in terms of other people

looking at Canada. Lost opportunities [to] have put a lot of stuff behind us and be working on real issues."11 While I remain unconvinced of the merits of the Meech Lake

Accord, I do not feel that its collapse was beneficial to Canada.

During negotiations, many academics felt compelled to enter the political fray and offer their opinion of the Meech Lake Accord. Many academics also opposed the

Free Trade Agreement that the Conservative Government negotiated with the United

States during the same period. For some, the issues became intertwined. In English

Canada, academics who were most outspoken on the Accord were often opposed to the

Free Trade Agreement. Not all of those who opposed one opposed the other, but the two were often linked in debate, so much so that at least one conference was organized on

11 Donald Dennison, interview with author, July 11 2007.

19 the theme of connections between Meech Lake and Free Trade. Political scientist Peter

Russell remarks upon the fusion of the two issues, "Meech Lake and Free trade were linked together as a double-barrelled threat to... collectivist social policies... It is this linkage which pushed most of the left-wing intelligentsia in English Canada into the anti-Meech camp."13

Historian Ramsay Cook was amongst those who came out against the Meech

Lake Accord, voicing his doubts in a commentary for Canadian Broadcasting

Corporation radio after the initial agreement was struck in April 1987.14 In an essay entitled "Alice in Meechland," Cook criticized the "obscurity" of the Accord's language, particularly as it applied to Section 1, the distinct society clause.15 The thrust of the article is that, should the distinct society provision turn out to be empty symbolism instead of delivering new powers to the Quebec government, many in that province would be severely disappointed. This appeared likely given that the statements of the

Quebec and federal governments about the meaning of the clause contradicted each other.16 Moreover, when Lowell Murray, Minister for Federal-Provincial Relations, appeared before the Joint Committee of the House and Senate on the Constitution

Amendment, 1987, the list of reasons he gave for Quebec's designation as distinct, in

Cook's words, "[contained] nothing that is not already guaranteed in the 1867 version of

Dean's Conference on Law and Policy, Queen's University, 13 February 1988. See John D Whyte and Ian Peach, eds. Re-Forming Canada? The Meaning of the Meech Lake Accord and the Free Trade Agreement for the Canadian State (Kingston: Institute of Intergovernmental Relations, Queen's University, 1988). 13 Russell, 144. 14 Ramsay Cook, The Teeth of Time :Remebering Pierre Elliot Trudeau (Montreal/Kingston: McGill- Queen's University Press, 2006), 153. 15 Ramsay Cook, "Alice in Meechland or The Concept of Quebec as 'A Distinct Society,'" in Clive Thomson, ed., Navigating Meech Lake: The 1987 Constitutional Accord (Kingston: Institute of Intergovernmental Affairs, Queen's University, 1988): 53-64. 16 Cook, 59. our constitution.. .."17 Cook argues that the upshot of the confusion and disappointment that would follow a narrow interpretation of the distinct society clause by the courts would be a revival of support for the sovereignty movement in Quebec. His scepticism towards the Meech Lake Accord is not surprising given his earlier writing and his intellectual relationship with that other stalwart Meech Lake opponent, former Prime

i o

Minister Pierre Elliott Trudeau.

Historian Michael Bliss was a founding member of an organization called the

"Canadian Coalition on the Constitution." The Coalition's goal was to stop ratification of the Accord and raise public awareness and opposition to the agreement. It included other notable Canadians/Accord opponents Deborah Coyne, special advisor to Clyde

Wells on the constitution, and George Radwanski, journalist, Trudeau biographer, and president of the coalition. Bliss campaigned actively in the press to dissuade those who might support the Meech Lake Accord. For example, in an effort to gain support among the business community, he argued that they should not trust the assurances of the governments that negotiated the accord: "These are the 10 governments that have violated the dream of a single common market within Canada, have given us our uncompetitive beer and wine industries, the mess of rent controls, chaotic securities regulation, and generations of assorted demagogues passing bad laws."19 This argument, a criticism of current provincial regulations and tariffs, is not an argument rooted in history, as is Ramsay Cook's argument discussed above. Michael Bliss moved beyond

Cook, 59-60, his emphasis. For examples of Cook's earlier writing on Quebec's place in confederation see The Maple Leaf Forever (Toronto: MacMillan, 1971). See also Cook, The Teeth of Time: Remembering Pierre Elliot Trudeau (Montreal/Kingston: McGill-Queen's University Press, 2006). 19 Michael Bliss, "Business should be worried about Meech Lake Accord," The Financial Post, 5 December, 1988,14.

21 argument from history to oppose the Meech Lake Accord with arguments about contemporary economic issues.

In New Brunswick, academics also became actively involved in the Meech Lake debate. Historian Stephen E. Patterson, an active member of the New Brunswick Liberal

Party, led a group of Liberals who opposed it. Patterson also presented a brief opposing the Accord to the Select Committee on the 1987 Constitutional Amendment of the New

Brunswick Legislative Assembly in 1989, as well as the federal government's Charest

Committee in 1990. Patterson, much of whose work focuses on Revolutionary American history, felt that his area of historical study influenced his opposition to the Accord.20 He

objected to what he viewed as the exclusivity of the Meech Lake process, and would have favoured a more open debate. Again, Patterson looked to American constitutional history for a model, noting of the revolutionary period, "there was a very, very

widespread discussion and public debate on the whole thing. As I have discussed in writing I think that that event was probably the most public and democratic of

constitutional formations in human history." Patterson also compared Canadian and

American constitution-making academically, pointing out lessons that Canadians might

draw from the American experience.22 Just as Patterson's interest was motivated by his

own historical research, he felt this was true of other historians as well.

Patterson notes that during his career as a historian Behiels focused primarily on the history of Quebec, and that this was likely a reason for his interest. As Behiels worked in Ottawa, he became very important to the growing network of academics who

20 Stephen E. Patterson, interview with author, 16 July 2007. 21 Stephen E. Patterson, interview with author, 16 July 2007. Patterson, Stephen E. "Some Lessons for Canadians: Ratification of the American Constitution," Canadian Review of American Studies, 23.4 (Fall 1993): 121-138.

22 opposed the Accord. Patterson recalls, "he was brave, he stuck his chin out. And he became sort of our point man in Ottawa."23 Behiels was a signatory to a nationally circulated opinion article - along with Cook, Patterson and others - decrying the process by which the Meech Lake Accord was negotiated.24 Apart from his participation in anti-

Meech commentary, Behiels also wrote academically about the Constitution

Amendment, 1987. While debate over the Accord was ongoing, he published a major anthology on the subject. The Meech Lake Primer drew together writing from a vast array of authors, both pro- and anti-Accord. Behiels continued to write about the meaning of Meech Lake after its failure in 1990 and generally in constitutional history that followed.25

Michael Behiels' subsequent work in constitutional history forms an important part of the historiographic model on which this research project is based. In his 2004 study, Canada's Francophone Minority Communities, Behiels discusses citizens' advocacy and organization instead of the elite process. He notes in his introduction,

"[rjather than approaching the history of Canada's recent constitutional renewal from the top down, this book analyses the process from the bottom up. In so doing, it highlights the remarkable ongoing democratization of Canada's constitutional development and

Stephen E Patterson, interview with author, 16 July 2007. 24 "Constitutional Process Declared Undemocratic," Fredericton Daily Gleaner, 15 March 1989,15. Among the other signatories were Graeme Decarie (Historian, Concordia), Howard Palmer (Historian, University of Calgary), Bryan Schwartz (law professor, University of Manitoba), John Whyte (law professor, Queen's University), and Alan Cairns (political scientist, University of British Columbia). Jack Granatstein did not sign this particular condemnation of the Accord but was on record as opposing it as well; see Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Toronto/Vancouver: Douglas & Mclntyre, 1990), 99. 25 See Michael D. Behiels, "The Meech Lake Accord and the Process of Political Realignment in Canada, 1979-1990," in C.H.W. Remie and J.-M. Lacroix, eds., Canada on the Threshold of the 21s' Century: European Reflections upon the Future of Canada (Amsterdam/Philadelphia: John Benjamins Publishing Co., 1991), 399-410.

23 traditionally deferential political culture." Behiels examines how les francophones hors Quebec formed organizations capable of lobbying the government for constitutional change and then used those changes to secure their communities' right to

French-language education. This approach is easily transferred to other groups that lobbied governments around constitutional change, such as the NBAHCC. The aim in this study is to broaden bottom-up constitutional historiography through the examination of a specific organization.

The bulk of writing on the Meech Lake Accord has come from journalists, jurists, political scientists and politicians. Much of this writing is very similar in approach to the way a traditional constitutional historian would examine the issue: a story of the governing elite negotiating and debating a constitutional amendment package. Two major monographs on the Meech Lake Accord were published immediately following its collapse. Journalist Andrew Cohen wrote A Deal Undone:

The Making and Breaking of the Meech Lake Accord. This account is based around interviews with the premiers and their officials. It focuses on the personalities of the premiers and Prime Minister and how this affected negotiations over the three years the

Accord was debated.27 Patrick Monahan, a law professor who served as assistant to Ian

Scott, Attorney-General of Ontario during the Meech Lake Accord period, authored

Meech Lake: The Lnside Story. Based in part on Monahan's own personal experience, it also focuses on the machinations at the elite government level. The same is true of the

Michael D. Behiels, Canada's Francophone Minority Communities: Constitutional Development and the Winning of School Governance (Kingston/Montreal: McGill-Queen's University Press, 2004), xxvi- xxvii. Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Toronto/Vancouver: Douglas & Mclntyre, 1990).

24 references made to Meech Lake in various political biographies. While all mention popular opposition to the Accord, it is presented largely as a distraction from the elite- driven process at the heart of the story.

The Meech Lake Accord was grist for the mill for many political scientists.

Among them was Alan C. Cairns, who has argued that, as a result of the political process involved in the entrenchment of the Charter of Rights and Freedoms, many Canadians developed a sense of ownership over their constitution after repatriation. This view of a

"citizens' constitution" stands in sharp contrast to the traditional understanding of the

"governments' constitution," which "views the (written) constitution as a document of federalism, and thus of concern primarily to the governments whose affairs it regulates."29 In addition, the participation of citizens not affiliated with governments in the repatriation process led to the establishment of new constitutional constituencies.

These groups - Women, Aboriginal peoples, the disabled and Canadians of various multicultural backgrounds - felt they had a stake in the constitution because of their recognition in the Charter. Cairns developed citizens' constitution theory over several essays, beginning with his observations of the repatriation process.30 During the three years the Meech Lake Accord was debated, he refined his thesis, drawing on the objections to the Accord raised by those Canadians who had felt constitutionally

For examples see Philip Lee, Frank: The Life and Politics of Frank McKenna (Goose Lane Editions, 2001); Michel Cormier and Achille Michaud, Richard Hatfield: Power and Disobedience (Fredericton: Goose Lane Editions, 1992); John C. Crosbie and Geoffrey Stevens, No Holds Barred: My Life in Politics (Toronto: McClelland & Stewart, 1998) and most importantly Brian Mulroney, Memoires (Toronto: McClelland & Stewart, 2007). 29 Alan C. Cairns, "Citizens (Outsiders) and Governments (Insiders) in Constitution-Making: The Case of Meech Lake," in Alan Cairns; Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991): 108-138,108-109. 30 See Alan C. Cairns, "The Politics of Constitutional Renewal in Canada," in Constitution-Making: The Case of Meech Lake," in Alan Cairns; Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991): 66-107.

25 enfranchised by the repatriation process. I borrow from Cairns' theory and argue that the members of the NBAHCC believed in a "citizens' constitution" of the kind described by

Cairns and consequently objected to the Meech Lake Accord.

My thesis is an attempt to explain why individuals acted to oppose the ratification of the Meech Lake Accord. Cairns articulates citizens' constitution theory in broad terms, attempting to identify a far-reaching phenomenon and its effects on various constituencies. He writes of the attempts to "defend" the citizens' constitution: "The constitution is now the central arena within which the groups of an increasingly plural society defined, inter alia, by gender, ethnicity and language vie with each other for recognition and acceptance."31 The theory deals with entire classes of citizens: those who have been specifically recognized by the Charter of Rights and Freedoms. The

Charter explicitly recognized the rights of virtually all citizens in one way or another, but Cairns does not examine the motivating factors on an individual or local/group level.

Not all of those whose rights were recognized or bolstered by the Charter chose to oppose the Meech Lake Accord. In studying the NBAHCC in light of Cairns' work this research project, in a sense, tests his claims at a micro level. Like Behiels, Cairns also staked a position on the Accord. He notes of the lack of public consultation that characterized most governments' approach to the Accord, "I view the Meech Lake process as a failure in constitutional morality."32 While borrowing from Cairns' observations of anti-Meech Lake sentiment, this thesis does not similarly moralize about the negotiation process.

31 Cairns, "Citizens (Outsiders) and Governments (Insiders) in Constitution-Making," 131. Alan C. Cairns, "Federalism and the Provinces," in Alan Cairns; Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991), 143.

26 Another social scientist on whose research this study will draw is political scientist Alexandra Dobrowolsky. Her study, The Politics of Pragmatism, depicts the efforts of feminist organizations to lobby the federal and provincial governments over constitutional issues.33 Specifically, it focuses on the repatriation, Meech, and

Charlottetown rounds of constitutional negotiation. The Meech Lake portion of

Dobrowolsky's study chronicles the efforts of women's organizations based in Toronto and Ottawa, such as the Ad Hoc Committee of Women on the Constitution (AHCWC) and the Women's Legal Education and Action Fund (LEAF). The approach in The

Politics of Pragmatism is similar to that of Behiels in Canada's Francophone Minority

Communities, focusing on non-elite constitutional history. Dobrowolsky notes that, despite the importance of women to the history of constitution-making, "women's constitutional forays have not been systematically mapped... ."3 Dobrowolsky notes the connection between the AHCWC (which lobbied the federal and Ontario governments) and the NBAHCC.35 The presence of the NBAHCC in an account that focuses almost entirely on Ontario suggests the importance of the Committee to national anti-Meech lobbying by women's organizations and the importance of political events in New

Brunswick to the Meech saga generally.

The role of women's groups in the history of constitution-making plays an important part in this research project. There is a rich history of feminist activism in

New Brunswick generally and in Fredericton especially, as women have lobbied government for support and the establishment of organizations to address women's

Alexandra Dobrowolsky, The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada (Don Mills: Oxford University Press, 2000). 34 Dobrowolsky, 1. 35 Dobrowolsky, 97-99, nl67.

27 issues. Despite the impressive accomplishments of the women's movement in New

Brunswick, relatively little historical research has been completed on second-wave feminism in the province. The New Brunswick Advisory Council on the Status of

Women (NBACSW) has published two historical monographs.36 There are also a few studies focusing on specific issues in recent New Brunswick women's history, such as the Tobique Reserve/Sandra Lovelace protests.37 Another recent example is a study of

Moncton's Crossroads for Women/Carrefourpourfemmes House by Nancy Janovicek.

Although Janovicek's article does not deal at length with questions of historiography, a review of the sources cited reveals a lack of material by other historians on second wave feminism in New Brunswick.38 More material has been published on the women's movement in Nova Scotia, particularly Halifax. While scholarship on women and the constitution exists, little of it is by historians and most of it focuses on Central Canada, forcing the student of New Brunswick second wave feminism to look outside of the province.39 Establishing the feminist context of the NBAHCC is all the more important given this paucity of previous research.

This thesis explores a unique aspect of the Meech Lake Accord story. Traditional constitutional accounts have been written that focus on the actions of the governing elite

See Elspeth Tulloch, We The Undersigned: A History of New Brunswick Women, 1784-1984 (Fredericton: New Brunswick Advisory Council on the Status of Women, 1985) and Growing Up Female in New Brunswick: 1970-2000 (Fredericton: New Brunswick Advisory Council on the Status of Women, 2001). 37 See Janet Silman, ed. Enough is Enough: Aboriginal Women Speak Out (Toronto: The Women's Press, 1987). 38 Nancy Janovicek, '"If it saves one life, all the effort... is worthwhile': Crossroads for Women/Carrefour pourfemmes, Moncton, 1979-1987," Acadiensis, 35.2 (Spring, 2006): 27-45.1 am indebted to Ms. Janovicek for taking the time to discuss the historiography of second-wave feminism in New Brunswick with me. A great deal of work has also been completed on the women's movement in Central Canada, including the work of Dobrowolsky discussed above. For a Nova Scotian example see Janet Guildford and Judith Fingard, eds., Mothers of the Municipality: Women, Work and Social Policy in post-1945 Halifax (Toronto: University of Toronto Press, 2005).

28 in this constitutional round. There have also been some accounts that look at the actions of citizens, but none that deal with citizens' groups in New Brunswick. With this historiographic background in mind the story of the NBAHCC and an explanation of its place in the constitutional history of Canada can now be told.

29 Chapter 2

The Long Road to Meech Lake: Executive Federalism and Constitution-making in Canada

To understand the opposition of the New Brunswick Ad Hoc Committee on the

Constitution to the Meech Lake Accord one must understand the historical background of the Accord and Canadian constitution-making. This chapter will begin with an explanation of executive federalism and its importance to the functioning of Canadian government. An examination of the origins of the repatriation question and the many attempts at repatriation over the course of the twentieth century provides the background to Canadian constitution-making. Particular emphasis is placed on the final, successful attempt at repatriation by the government of Pierre Elliott Trudeau in 1981. Both the absence of Quebec from the repatriation agreement - the prima facie reason for the

Meech Lake Accord - as well as the shift in public expectations around constitution- making this engendered makes this the key historical episode in the background of the

Accord.

This chapter will also examine the process through which the Meech Lake

Accord came to be. The shifts in the political landscape that took place in Ottawa and

Quebec City in 1984-85 are explained, as they made the negotiation of the Accord possible. This is followed by an examination of Quebec's conditions for accepting the

1981 repatriation settlement. Finally, an explanation of the negotiations and the Accord they produced, including a detailed look at the Constitution Amendment, 1987, are offered. An explanation of the NBAHCC begins much earlier, with the story of the

Canadian constitution itself.

30 The British North America Act, passed by the Imperial Parliament in 1867, organized the United Province of Canada, New Brunswick and Nova Scotia into a single dominion. During the negotiations, a compromise was struck between those who wanted a more and those who wanted a less centralized state. Although many, including John A.

Macdonald, would have preferred that the new Dominion of Canada take the form of a unitary state, along the British model, it was organized as a federal state. The federal model was primarily advanced by Francophone Canadians from Quebec, who saw it as a way to protect their culture and language in a country that would be demographically dominated by Anglophones, and supported by the Maritime colonies, which held similar concerns regarding the demographic weight of Canada.2 Legislative jurisdiction was granted to the provinces over a variety of areas deemed to be "of a merely local or private nature," preserving a territorial home for Francophones in Quebec.3

The innovative response on the part of the constitutional framers, grafting

American-style federalism onto a British parliamentary system, is a combination of two very different governing structures. The central feature of the British model is that power is controlled through centralization. The executive and legislative powers (in practice) both rest with the majority in a parliament with supreme authority. A federal system, as set out in the American or Swiss constitutions, disperses power to a number of centres, each with its own legislative sphere of competence. These centres are limited in their authority and are checked by the other centres of authority.4 The Canadian system combines power-maximizing executive/legislative centres of government within

1 Robert C. Vipond, Liberty and Community (Albany: SUNY Press, 1991), 24. 2 Vipond, 18. For Maritimers' concerns regarding confederation, see Phillip Buckner, "The Maritimes and Confederation: A Reassessment," Canadian Historical Review, LXXI.l (March 1990): 1-45,17. 3 Constitution Act, 1867, Section. 92.16. 4 Ronald L. Watts, Comparative Federalism (Kingston: Institute of Intergovernmental Relations, 1989), 1- 2.

31 a framework of regional diffusion. As political scientist Ronald Watts notes, "Canadians have attempted to combine a British inheritance with an American model, each based on fundamentally different premises, apparently contradictory to each other."5 A result of this awkward union is that the two levels of government are in constant competition for power. The situation was made all the more confusing by the division of powers set out in the British North America Act. Although Sections 91 and 92 assign various areas of jurisdiction to be within the legislative competence of either the field of government, these areas are vague and have conflicted over time.6 The framers also vested all residual authority with the federal government, which has long been a point of conflict.

This competition for power, along with the challenges of administering a federal state, has led to the practice of executive federalism. This concept was first articulated by political scientist Donald Smiley in the 1960s.8 During the Meech Lake debates, there was an abundance of citizens' groups - including the NBAHCC - that made presentations on the faults of executive federalism as a means of constitution-making.

Executive federalism refers to the practice in Canada, and nations with similar constitutions, for jurisdictional disagreements and initiatives to be mediated through

5 Watts, 1. 6 An example of this is the federal power of the "regulation of trade and commerce" (Section 91.2). Residual authority gives the federal government the power to legislate outside the specific areas enumerated in Section 91, as well as in provincial areas under certain circumstances. For example, the federal government can legislate for the general "peace, order and good government" of Canada (Section 91). It can declare certain "works" to be within federal jurisdiction should they be to "the general Advantage of Canada or for the Advantage of Two or more of the Provinces," even if they fall within an area of provincial legislative competency (Section 92.10(c)). The provincial Lieutenant Governors - appointed by Parliament - also have the authority to reserve the assent of provincial legislation for review by the federal government, which may veto said legislation should it wish (Sections 55,56, 56 and 90). These powers have been interpreted with varying severity over time, see John Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002). A description of the theory's prominence may be found in Watts, 3.

32 intergovernmental negotiations.9 In the Westminster parliamentary model the executive branch of government resides within the legislature, its authority drawn from the

confidence of a majority of the members of the legislature. Given the severity with

which party discipline is traditionally enforced in Canadian legislatures, agreements

struck between the executive branches of governments are generally assured

ratification.10 As the executives can easily implement - if not always negotiate -

intergovernmental agreements, executive federalism became the method through which

governments attempted to affect constitutional change in Canada.11 This practice would

go largely unchallenged until the controversy that erupted over the Meech Lake Accord.

While there were occasional Dominion-Provincial (later first ministers') conferences

during the first sixty years following confederation, the bulk of federal-provincial

wrangling over the constitution was confined to the courts or mediated through

administrative agreements. In the 1920s, however, that would change when a new

motivation for constitutional reform arrived: repatriation.

9 Donald V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987), 83. Executive federalism as a means of management, negotiation and dispute resolution are also major parts of the political cultures of Australia and Germany, for example. 10 This situation is more complicated, of course, when a government maintains only minority standing in the legislature, as was the case for the Government of Manitoba during most of the Meech Lake years. Watts, 6-8. Again, this has been the case in countries with similar constitutions, notably Australia and India. It should also be noted that "executive federalism" refers to all manor of administrative agreements negotiated between ministers and officials. In the context of the controversy over the Meech Lake Accord, however, the term referred almost exclusively to agreements made between the first ministers with little or no concern for public input. There is some variation in constitutional literature over whether Canada repatriated or patriated the British North America Act in 1981-82. The word patriation (although more common) is not often found in dictionaries of the English language. Moreover, the concept of patriation, making something native to a place from which it was not native, makes little sense. The French-language usage is consistently rapatriement, and this study will use the terms repatriation and repatriated.

33 The drive behind repatriation originated with the Imperial Conference of 1926.

The conference had special significance for Canada, as it followed on the heels of the

King-Byng affair.14 With a mandate to negotiate changes to the status of the Dominion,

King proceeded to the Imperial conference to negotiate a more equitable relationship with the United Kingdom. The result of that conference was the Balfour Declaration

(1926), which stated that Great Britain and the Dominions were "autonomous

Communities within the British Empire, equal in status, in no way subordinate one to

another in any aspect of their domestic or external affairs.. ,"15 Given Canada's newly

proclaimed status as equal of the United Kingdom, it was clear that it should accept

responsibility for amendment of the British North America Act.

The time for repatriation had arrived. A Dominion-Provincial conference in

November of 1927 was unable to agree on an amending formula.16 In what was to

become a key point of contention, the conference foundered upon disagreement over the

amending formula.17 Indeed, the questions that arose - particularly which amendments

required unanimity as opposed to some varying degree of provincial consent, and how

much consent was necessary - would plague the various repatriation efforts through the

final round in 1981. It is also noteworthy that, from the beginning, all such negotiations

were carried out through executive federalism, either by the First Ministers themselves,

Although the topic had arisen at various times since 1867, it had never become a government priority. Notably, J.S. Woodsworth felt possession of the domestic power to amend Canada's constitution was necessary to build a compassionate state, and Sir Clifford Sifton described the status quo as "an anachronism and an absurdity," Paul Gerin-Lajoie, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 1950), 222,224-226. 14 In June of 1924 Prime Minister W.L. Mackenzie King had requested dissolution of Parliament from the Governor General, Viscount Byng. He refused, asking Conservative leader Arthur Meighen to form a government. The Meighen administration quickly lost the confidence of the House and in the ensuing election King campaigned against Imperial interference in domestic affairs, securing a majority. 15 Gerin-Lajoie, 27 (nl). 16 Gerin-Lajoie, 228. 17 James Ross Hurley, Amending Canada's Constitution (Ottawa: Supply and Services, 1992), 25-26.

34 or more often in concert with their attorneys general and other officials. Federal- provincial conferences on the constitution became such a perennial feature of the

Canadian political landscape that Garth Stevenson described them as "woes inflicted on sinners by the God of the Old Testament, [they] lasted unto the third and fourth generation."19 When the next Imperial Conference was convened in London, Prime

Minister R.B. Bennett was forced to admit that "his government was faced with a peculiar problem."20 The federal nature of Canada made repatriation impossible until agreement was reached between the Dominion and provincial governments.

Soon thereafter the Dominions were given formal authority over their own external relations with the enactment of the Statute of Westminster, 1931.21 It gave legal

force to declarations made at the Imperial Conferences of 1924 and 1930 and formally made the Dominions independent.23 In Canada's case, however, a special exception was made. At the request of Prime Minister Mackenzie King, the Statute included a clause

stating that the Imperial Parliament would retain its authority to amend the British North

America Act.24 Another attempt at repatriation was made in 1931, but no agreement was

18 Hurley, 26. The attorneys general also serve as ministers of justice. Here they will be referred to as the former. 19 Garth Stevenson, Unfulfilled Union (Toronto: Gage, 1991), 239. 20 Gerin-Lajoie, 100. The conference met in 1929-1930. Canada was not the only federated dominion present at the conference -Australia's constitution was organized along principles very similar to the British North America Act- but it was the only one unable to take control of its constitution. Unlike Canada, Australia (as well as New Zealand) had been granted a domestic amending formula in 1900, and thus the authorities at Canberra were never required to make the appeals to Westminster that marked Canada's constitutional evolution until 1981. Although both the Australian and New Zealand constitutions were repatriated in the 1986, this merely eliminated their status as statutes of the British Parliament. Gerin-Lajoie, 35. 22 Gerin-Lajoie, 93. 23 The Balfour Declaration (1926), Gerin-Lajoie, 27, 24 "Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder." Sec. 7(1), Statute of Westminster, 22 George V (1931), emphasis added.

35 reached.25 Until such an accord was negotiated, it was determined that the status quo would continue, despite Canada's newly legislated independence.

The lack of constitutional sovereignty became less acceptable as time wore on

for two major reasons. The first reason was the tremendous demands placed upon the

federal government by the Depression, the Second World War, and the construction of a

Canadian welfare state. All three required the expansion of jurisdictional competence of

the central government. While Ottawa had the funds to respond to the new demands

placed upon the state, the provinces held exclusive jurisdiction over most of the areas

where increased government intervention was desired. The fiscal quagmire of the 1930s

acutely demonstrated this need for a new arrangement within Canadian federalism. R.B.

Bennett's government responded by crafting a broad legislative package just prior to its

removal from power.26 The new Liberal government supported the initiative, but

believed it was unconstitutional. They referred the matter to the courts upon taking

office in 1936. The Judicial Committee of the Privy Council adhered to its habitual

practice of defending provincial rights and limiting federal power in ruling the entire

Bennett New Deal package ultra vires in January, 1937.27

In order to proceed, the government was forced to amend the constitution with an

appeal to the British Parliament. As the amendment required a transfer of legislative

power, it was generally acknowledged that it would be necessary to gain the consent of

the provincial governments. With no clear amending formula, however, the question of

Hurley, 26. This Dominion-Provincial Conference produced a joint address to the King requesting that Westminster maintain its powers of amendment, but besides made little progress on the subject. Unoriginally titled the New Deal, the centrepiece of which was anew federally administered unemployment insurance scheme, unveiled in 1935. Saywell, 203-205. 27 The Judicial Committee of the Privy Council remained the court of last appeal until 1949. Saywell, 226- 228. Saywell notes that the strict interpretation of the so-called "water-tight compartments" of the British North America Act "provoked a reaction in Canada that would lead to the abolition of appeals [to the Judicial Committee]."

36 how many provinces were required remained unclear. Although agreement was reached

with six of nine provinces by March, 1938, the King government did not proceed until it

had approval from the three hold-out provinces. It took another two years to achieve this

goal.28 Despite two additional conferences dedicated to finding an amending formula for

repatriation since the Statute of Westminster, no progress had been made.

The Second World War increased the scope of the federal government's

intervention as Canadian society was reorganized for the prosecution of the war. While

the now long-term project of an amending formula was neglected, the increased federal

spending helped legitimate a practice that would continue after the war. With the use of

emergency powers in the British North America Act and the War Measures Act, the

federal government initiated vast reforms, including the regulation of labour and

unemployment insurance.30 The war also highlighted the absurdity of making appeals to

Westminster for amendments that were essentially housekeeping matters.31 This led to

the addition of Section 91(1) of the British North America Act. Requested unilaterally by

Prime Minister Louis St. Laurent, the amendment empowered Parliament to amend the

constitution without recourse to Westminster in matters that would not affect the

Gerin-Lajoie, 106. While the federal government was careful not to declare that unanimous consent was required for such an amendment, they had not proceeded until it was secured. 29 Hurley, 27-29. 30 For an overview of these changes and their affect in New Brunswick, see Carman Miller, "The 1940s: War and Rehabilitation," in E.R. Forbes & D.A. Muise, eds., The Atlantic Provinces in Confederation (Toronto/Fredericton: University of Toronto Press/Acadiensis Press, 1993), 306-345. The constitution was amended in 1943 to allow for the postponement of a reallocation of seats in the House of Commons, which was required following each decennial census. Immediately following the war a similar amendment was made, again involving the distribution of seats in the House. Guy Favreau, The Amendment of the Constitution of Canada (Ottawa: The Queen's Printer, 1964), 13.

37 provinces.32 The power would prove as much an obstacle as an aid in the repatriation

struggle.

The next major constitutional amendment concerned the implementation of the

Canada Pension Plan in 1951.33 Again confronted with the uncomfortable necessity of

appealing to Westminster, there was another attempt at repatriation. The provinces were

concerned with the federal government's partial repatriation the year before, however,

and it sunk the negotiations.34 In 1960 Prime Minister John Diefenbaker and Attorney

General E. Davie Fulton spearheaded the seventh attempt at agreeing upon an amending

formula for repatriation.35 The "Fulton formula," as it came to be known, captured all

the previously agreed upon features. These included the principle that general

amendments would require the approval of two-thirds of provinces comprising fifty per

cent of the population and Parliament; unanimous approval of governments for certain

essential features of confederation; and the possibility of bi- and multilateral agreements

effecting the status of one or more, but not all, provinces. Once again, disagreement

over the conditions under which Section 91(1) could be used scuttled the negotiations.

A subsequent amendment was required in 1964 to allow for supplementary

benefits under the pensions scheme.37 Once again, it was accompanied by an attempt at

an amendment formula and repatriation. The effort was led by the Liberal Attorney

General Guy Favreau. The amending procedures, which became known as the "Fulton-

Favreau, 23. This amendment, Section 91(1), essentially matched the provincial governments' power to amend their own provincial constitutions, excluding matters outside their jurisdiction (such as enlarging their legislative competence or altering the office of the lieutenant governor. Section 94A, British North America Act. The amendment was made the usual way, as was the next one that dealt with the tenure of judges, Hurley, 31. 34 Hurley, 31. 35 The tabulation of repatriation attempts is taken from James Hurley. For a summary of the amending formula see Hurley, 32-34 and Favreau, 26-29. Many of its provisions were included in the Constitution Act, 1982. 37 This amended Section 94A, British North America Act.

38 Favreau formula," as it built on the work of Attorney General Fulton, settled the questions over Section 91(1). For the first time, all eleven governments agreed to a proposed amending formula and repatriation appeared close at hand.38 Quebec Premier

Jean Lesage, who referred the matter to his assembly, encountered resistance to the formula.39 A colloque was organized at the Universite de Montreal on 18 March 1965 to debate the issue in public. Professor Jacques-Yvan Morin argued that Quebec should not accept such a rigid amending formula until it had secured additional legislative powers.

Faced with popular and academic opposition to the formula, Lesage withdrew Quebec's support for the repatriation package in January 1966. The breaking of the accord by

Quebec was a manifestation of the new force behind constitutional politics in Canada:

Quebec nationalism.41

Apart from the demands for increased state intervention described above, the second major motivation for repatriation came from the demands of the Province of

Quebec. The needs of Canada's only province with a Francophone majority had long affected the nature of the federation. The federal system allowed Quebec to retain its unique features, such as the Civil Code, and develop new ones, like the caisses populaires.42 With the election of Jean Lesage's Liberal government and the onset of la revolution tranquille, Quebec proceeded with an ambitious expansion of the provincial

In Constitutional Amendment in Canada, Favreau writes with great confidence about the coming repatriation. See Favreau, 34. From time to time, various provinces had referred constitutional amendments to their legislatures for approval. Quebec had done this regularly since 1951. Favreau, 14-15. 46 Hurley, 34-35, The events in Quebec are also notable as the first time popular participation in constitution-making made a substantive difference in the constitutional history of Canada. While "banking" and "savings banks" are placed under federal jurisdiction in Part IV, Section 91(15)(16) Constitution Act, 1867, the Supreme Court of Canada has found that the caisses populaires fall under provincial jurisdiction. As a result, Quebec was able to develop its unique financial institutions which have since spread to other jurisdictions, including New Brunswick. See Bryan Schwartz, Fathoming Meech Lake (Winnipeg: Legal Research Institute, 1987), 42.

39 state. As nationalist sentiment mounted in Quebec, demands for Ottawa to remove itself from provincial affairs, and to increase the legislative competence of the National

Assembly made repatriation a far more complex question. "What does Quebec want?" became a bedevilling concern for the rest of Canada. The answer, it seemed, would have to include recognition of Quebec's special status within confederation and additional constitutional powers to protect that status.

Three years of renewed repatriation efforts culminated in 1971 with a first ministers' conference in Victoria, British Columbia. The Victoria Constitutional

Charter, 1971 was agreed to by Prime Minister Pierre Elliott Trudeau and the premiers on 16June. The amending formula departed from earlier attempts with a single amendment procedure based on a regional requirement and a veto for Ontario and

Quebec.43 At the behest of the federal government, repatriation was also to include an entrenched charter of rights. This introduced a new dynamic into constitutional politics.

Whereas the constitution had been almost entirely a document determining the way governments interacted within a federal system, a charter of rights would set out how governments interacted with the people.44 Things looked bright until Quebec Premier

In place of the various procedures required under Fulton-Favreau and earlier formulas, such as the 'two- thirds of provinces with fifty per cent of the national population' rule for general amendments, Victoria called for the following: two of the four western provinces with at least fifty per cent of the western population - a compromise for British Columbia, which had demanded to be recognized as a fifth region of Canada; two of the four Atlantic provinces; and any province that was or had historically been home to at least twenty-five per cent of the national population. This gave a veto to Ontario and Quebec and was grandfathered to ensure that Quebec would maintain its veto despite any decline in its relative population. It also included a suspensive three month veto for the Senate in place of the earlier outright veto of the Fulton-Favreau formula. Hurley, 38-40. It is also worth noting that many of the conferences in this effort, beginning with Ontario Premier John Robarts' Confederation of Tomorrow Conference, were televised, building public interest in the constitution and helping to foster a sense of ownership among many Canadians over the constitution. "The rights of people must precede the rights of governments," declared the federal position papers. Pierre Elliott Trudeau, The Constitution and the People of Canada (Ottawa: Queen's Printer, 1969), 4. This was one of several government documents articulating the federal government's constitutional position at the time. Robert Bourassa returned to Quebec City to seek legislative approval. The Victoria

Charter did not grant any new legislative powers to Quebec - in fact, it slightly expanded Ottawa's competence under Section 94A, the amendment authorizing federal old-age pensions. Faced with objections from Quebec nationalists, Bourassa announced

on 23 June 1971 that he would not seek to ratify the Victoria Charter in the National

Assembly.45

A tenth attempt began in 1975, building on the Victoria Charter as the model

amending formula. Unlike previous efforts, the 1975-76 round was kept largely secret.46

The proposal came together in the "draft proclamation" of March 1976. While it

contained a general statement meant to address Bourassa's request of "guarantees" for

the protection of the French language and culture, it delivered no new powers to Quebec.

Moreover, other provinces had begun to express dissatisfaction with the current division

of powers. In particular, both Alberta and Saskatchewan wanted increased jurisdiction

over non-renewable natural resources. The political dynamics behind constitution-

making were changing once again. "Rooted as it was in earlier discussions, the March

1976 initiative did not address the new mood of Canada in the mid 1970s."47 These

factors, coupled with the unpopularity of the Quebec Liberals in the face of the Parti

Quebecois and an impending election, spelled the end of the tenth attempt at

repatriation.

45 Hurley, 40. There was no public announcement that governments had resumed the repatriation debate, and there would be no heavily publicised or televised first ministers' conferences until a deal was virtually secure. Instead, in a foreshadowing of the Meech Lake process, Secretary of State for Federal-Provincial Relations, Gordon Robertson, toured the provincial capitals testing proposals with provincial officials. Hurley, 41. 47 Roy Romanow, John Whyte & Howard Leeson, Canada... Notwithstanding (Toronto: Carswell/Methuen, 1984), 3.

41 The election of the Parti Quebecois indicated to the rest of Canada not only that they had failed to address the question of'What does Quebec want?' but also that there might be serious consequences for Confederation should they fail to reach some settlement. Given the failure of intergovernmental negotiations the federal government changed its strategy. In a series of documents, most notably A Time for Action, the

Trudeau government outlined its intention to proceed with a two-phase repatriation plan addressing an expanded list of items.48 The government gave force to the phase-one proposals in A Time for Action by tabling Bill C-60, which was to be enacted by 1 July

1979. Although Trudeau promised to seek the "maximum support from the governments of the provinces," the phase-one changes would be made unilaterally under Section

91(1).49 Phase -one stalled on two fronts. First, a joint Parliamentary committee recommended that the plan for Senate reform be referred to the Supreme Court in a reference case. The provisions of Bill C-60 included the reform of the Senate into a body called the "House of the Federation."50 It was felt that the significant degree of change proposed to the Senate might require provincial consent, which the Supreme Court found was the case.51 Second, as time wore on the increasingly unpopular Liberal government entered the fifth and final year of its mandate. While meetings between concerned ministers took place over the winter of 1978-79, the first ministers'

Trudeau, Pierre Elliott. A Time for Action (Ottawa: Supply and Services, 1978), 23-25. Among these items was the division of powers, which the federal government had previously been reticent to address, Romanowet al, 21. 49 Trudeau, 25. Trudeau, 23, the House of the Federation was to include "recognition of a role for the provinces in the selection of its members, and provision for proportionately greater representation to the eastern and western parts of the country, with substantial adjustment to ensure adequate representation for western Canada...." Bill C-60 also called for clarification of the constitutional status of the Supreme Court (it was, and remains, established primarily through federal statute) and a charter of rights that would bind Parliament and any province that agreed to it upon introduction or in the future. 51 Saywell, 304.

42 conference held in February, 1979 reached no agreement, and little progress was made during Joe Clark's brief time as Prime Minister.52

In the spring of 1980 the Parti Quebecois lost its referendum on sovereignty- association. Often cited among the reasons for the Non victory is the promise of a renewed federalism made by Trudeau.53 Only four days before the referendum, in a speech at Montreal's Paul Sauve Arena, Trudeau promised action on the constitutional front:

.. .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 Quebec MPs, are laying ourselves on the line, because we are telling Quebecers to vote "No" and telling you... 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.54 The substance of this promise is far from clear, and its exact meaning has been debated at length by Trudeau and others.55 As the governments of Canada turned their attention once more to the issue of repatriation, the question of what Trudeau's promise meant took on greater importance.

The final three attempts at repatriation occurred in the eighteen months following the referendum. Little progress was made over the summer of 1980, and at the First

Ministers' Conference in September the negotiating atmosphere was poisoned when a

Romanow et al, 54. These meetings of attorneys general and/or ministers of intergovernmental affairs were known as the Continuing Committee of Officials/Ministers on the Constitution. The meetings are described at length in Chapter 2 of Romanow, et al. 53Prime Minister again after the brief Joe Clark interlude, Trudeau "was probably wielding more raw prime ministerial power than any of his successors." Robert Shepard and Michael Valpy, The National Deal (Toronto: Fleet Books, 1982), 23. Translation, as quoted in Sheppard and Valpy, 33. For example, see the letter exchange between Pierre Trudeau, Claude Morin, and Marcel Adam, consolidated and translated in Donald Johnston, ed., Pierre Trudeau Speaks Out on Meech Lake (Toronto: Stoddart/General Paperbacks, 1990), 110-138.

43 secret memo outlining the federal strategy was leaked to the provincial delegations via

Quebec.56 The conference ended with a hardening of positions on both sides after the premiers presented a consensus "shopping list" of demands.57 With the failure of negotiation the federal government proceeded to its plan for unilateral repatriation of the constitution in October 1980. The federal initiative built on phase-one of A Time for

Action?* It also included a two-year time limit for the negotiation of a new amending formula, after which the federal government would propose a formula and submit it for approval by Canadians in a referendum. The government labelled its proposals The

Peoples' Package."5*

Although the idea of a charter of rights and freedoms found wide appeal, the proposed package was a far cry from what many in Quebec thought Trudeau had meant with his promise for a renewed constitution during the referendum campaign.60

Moreover, the question of whether the federal government could unilaterally repatriate the constitution had never been settled, although two provinces, Ontario and New

Brunswick, supported the federal initiative. Manitoba, Quebec and Newfoundland, all members of the "Gang of Eight" that stood in opposition to the federal initiative, legally

challenged the federal government's right to act with such limited provincial consent.

When the Supreme Court of Canada ruled in September, 1981, it found that while there

Known as the Kirby memorandum, the strategy was authored by Michael Kirby, Secretary to the Cabinet for Federal-Provincial Relations. It indicated that the federal government could accept failure of the conference because it intended to proceed unilaterally with its repatriation package. Romanow, et al, 94-95. Called the Chateau Consensus, as it was drafted at a meeting of the premiers at the Chateau Laurier hotel. The shopping list description was Trudeau's. Romanow, 97-98. It included a charter of rights and a commitment to equalization and the amelioration of regional disparity, without the "House of the Federation" proposal. 59 Hurley, 55. It was, however, consistent with Trudeau's constitutional outlook as articulated since his time as Attorney General of Canada.

44 was no legal impediment to the action, there was a constitutional convention requiring a substantial degree of provincial consent for repatriation.61

Another first ministers' conference was organized for November 1981. When it appeared that the talks had reached an impasse, Trudeau offered to ask Canadians to break the stalemate over the amending formula and the charter of rights in a referendum.62 Quebec premier Rene Levesque supported the notion, breaking with the other members of the Gang of Eight, who were opposed to referenda. The remaining provinces then wished to seek an alternative settlement. A preliminary agreement was negotiated by the federal, Ontario and Saskatchewan attorneys general, Jean Chretien,

Roy McMurtry and Roy Romanow, respectively.63 The federal government would achieve a charter of rights, binding on both levels of government, but with a non obstante clause.64 In return, the federal government agreed to the so-called "Vancouver formula," essentially the Fulton-Favreau formula with some changes.65

The agreement had been negotiated at night, and all the premiers staying in

Ottawa had been consulted. The Quebec delegation, encamped across the Ottawa River in Hull, was not. Upon learning of the agreement, Rene Levesque announced that there

Saywell, 304-305. A constitutional convention is an unwritten rule governing the operation of government. Conventions constitute an integral part of many constitutions, especially in those countries with constitutions based on the British political system. 62 Romanow, etal, 203. This initial agreement came to be known as the "kitchen accord," as it was worked out in a kitchenette off the main meeting rooms in the National Conference Centre. Romanow, et al, 207-208. 64 There were subsequent deletions and additions to what became the Canadian Charter of Rights and Freedoms. These will be discussed in chapter three. What came to be known as the "notwithstanding clause" (Section 33 of the Constitution Act, 1982) allowed the legislatures and Parliament to override rulings by the courts concerning certain provisions in the Canadian Charter of Rights and Freedoms. The 1981 amending formula allows a province to opt out of a transfer of legislative power to Parliament, with fiscal compensation to be paid in matters concerning "education or other cultural matters." The new constitution transferred some authority over non-renewable natural resources to the provinces. It also provided for a 180 day suspensive Senate veto.

45 was no way Quebec could accept it. Repatriation was finally achieved, but without the agreement of the Government of Quebec. Whether a separatist government would ever have agreed to a repatriation package is arguable, but as it stands Quebec was the only government which could not adhere to the accord. Moreover, the settlement was far from what many in Quebec believed Trudeau had meant with his referendum promise.

In the months following the repatriation settlement, Quebec challenged the repatriation package in court, arguing that the province had a conventional constitutional veto. The

Supreme Court disagreed, finding that the constitution was in force in Quebec and that they had no such veto.

The long history of repatriation outlined above indicates the difficulty in proceeding with something to which all governments agreed in principle. It also sheds light on executive federalism as a means of constitution-making. The 1981 agreement was the product of elite accommodation. Although subsequent additions were made to the Constitution Act, 1982, the repatriation accord was achieved through in camera bargaining by first ministers. For example, as Roy Romanow and his co-authors remark on the negotiation of the notwithstanding clause: "In a classic example of raw bargaining, Trudeau was persuaded to accept the override on fundamental freedoms on the condition that [it] be limited to a five-year period... ,"68 Political scientist Alan C.

Cairns has noted that, through all attempts at repatriation, executive federalism met with abject failure almost every time. "For half a century, the executive federalism meetings of first ministers were unable to agree on a domestic amending formula, including the

66 Romanow, et al, 210-212. Saywell, 305. Quebec had in fact given up its claim to a veto when siding with the other Gang of Eight members, who demanded equality of the provinces. Romanow, et al, 211. high-profile failures of the Fulton-Favreau formula and the Victoria Charter." When the process of Meech Lake was later criticized, it might have been comforting to look back at a "golden age of executive federalism," but this was never the case. Although the

1981 accord proved palatable to most Canadians with an interest in the constitution, this was largely the result of public input on the Charter of Rights and Freedoms, allowed before and after the executives had struck their deal. Although executive federalism rarely worked, the repatriation accord re-legitimized its use from the government perspective.

Repatriation accomplished, the political winds shifted in Ottawa and Quebec

City. Trudeau stepped down as Prime Minister in 1984. The Progressive Conservatives under Brian Mulroney were elected with the largest majority in Canadian history that

September. During the campaign, Mulroney had adopted a conciliatory attitude towards

Quebec on the subject of the constitution. This culminated in a speech at Sept lies on 6

August 1982 in which he stated that his government would work "to convince the

Quebec National Assembly to give its consent to the new Canadian constitution with honour and enthusiasm."70 Although Mulroney was on the record as a supporter of a

strong central government and an opponent of the idea of deux nations or special status

for Quebec, he changed his tune as leader of the Progressive Conservative Party.

Mulroney was able to cobble together a coalition in Quebec of "[m] any nationalistic

Quebec voters, including a large number of Parti Quebecois, Liberal and former Union

Alan Cairns, "The Charter, Interest Groups, Executive Federalism, and Constitutional Reform," in After Meech Lake, in David E. Smith, Peter MacKinnon and John C. Courtney, eds. (Saskatoon: Fifth House Publishers, 1991), 17. 70 Translation, Peter M. Leslie, ed., Rebuilding The Relotionship/Une Collaboration Renouvelee, (Kingston: Institute of Intergovernmental Affairs, Queen's University, 1987), 49-50. Andrew Cohen, A Deal Undone (Vancouver/Toronto: Douglas & Mclntyre, 1990), 67-68.

47 nationale supporters...."71 Mulroney intended to secure his fortunes in Quebec by

settling the constitutional question once and for all.

The second major change was the defeat of the Parti Quebecois in December

1985 and the election of the Liberal government, led by of Robert Bourassa, his role as

Premier of Quebec reprised. The Parti Quebecois had fractured internally over whether

to accept the new federal government's offer of constitutional negotiation. Quebec

Premier Rene Levesque was for the offer - which he dubbed le beau risque - and his

government produced a twenty-two item list of changes to the constitution. Mulroney

accepted the demands as a possible starting point for talks, but waited until after the

provincial election to enter serious negotiations. With both Rene Levesque and Pierre

Elliott Trudeau removed from power, the constitutional agenda could move ahead

without much of the personal baggage of the repatriation round.

The new Quebec government, building on the Liberal election manifesto,

Maitriser I 'avenier/Mastering Our Future, articulated its proposals for constitutional

reconciliation with the rest of Canada in May 1986. "Rebuilding The Relationship:

Quebec and Its Partners," was a conference organized by the Institute of

Intergovernmental Affairs of Queen's University and l'Ecole nationale d'administration

publique of the Universite de Quebec at the ski resort of Mont Gabriel. The new Quebec

Minister of Intergovernmental Relations, Gil Remillard, stole the show. In a keynote

address he enunciated five conditions for Quebec's political adhesion to the Constitution

Act, 1982:

71 Michael D. Behiels, "The Meech Lake Accord and the Process of Political Realignment in Canada, 1979-1990," in C.H.W. Remie and J.-M. Lacroix, eds., Canada on the Threshold of the 21s' Century: European Reflections upon the Future of Canada (Amsterdam/Philadelphia: John Benjamins Publishing Co., 1991): 399-410,400-401. 72 Patrick Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991), 42-43.

48 Ces conditions sont: [1] la reconnaissance explicte du Quebec comme societe distincte, [2] la garantie de pouvoirs accrus en matiere d'immigration, [3] la limitation du pouvoir federal de depenser, [4] la reconnaissance d'un droit de veto, [5] la participation du Quebec a la nomination des juges a la Cour supreme du Canada. In his conference summary, Peter Leslie notes that "[p]articipants repeatedly affirmed that the five conditions [Remillard] set out for reaching a new constitutional accord made agreement 'manageable,' as long as the agenda was limited to those items." The

strategy of setting minimum demands came with a risk however, as any compromise on the part of the Quebec government would be politically untenable, appearing as

capitulation.75 With the proposals greeted warmly by interested parties, the federal and

Quebec governments began approaching a new round of constitutional talks with

determination and, above all, confidentiality. Barry Toole was Deputy Minister of

Intergovernmental Affairs for New Brunswick during the negotiation of the Accord. "It

was the most incredible negotiation because the public and the media were not let into it until the end. It was the most interesting example of self-discipline on the part of many, many provinces, including the provinces which weren't particularly sympathetic to it."76

Gilles Remillard began visiting the provincial capitals with the Quebec proposals

in September 1986. It quickly became apparent that the process was to be both confidential and, once Quebec formulated its proposals, inflexible. Barry Toole, recalled that "Quebec never changed its view in all of these meetings, despite what the provinces

Quoted in full in Peter M. Leslie, ed., Rebuilding The Relationship/Une Collaboration Renouvelee, (Kingston: Institute of Intergovernmental Affairs, Queen's University, 1987), 50. 74 Leslie, 37. 75 Monahan, 57. 76 Barry Toole served as New Brunswick's Deputy Minister of Intergovernmental Affairs from 1972- 1988. Interview with author, 5 June 2007.

49 might have said to it. From the beginning Quebec was firm in its proposals. Patrick

Monahan, former assistant to Ontario Attorney General Ian Scott, writes at length about concerns Ontario officials had over the Quebec proposals during these initial meetings.

He notes, for example, that the Ontario officials wanted clarification on the mobility rights of Quebec immigrants, since Quebec wanted to receive a share of annual immigrants proportional to its population. What effect would this have on the ability of immigrants to move - a right under Section 6 of the Charter of Rights and Freedoms - once they became citizens? The question would come up many times during the acrimony that descended over the Meech Lake Accord. Though officials felt the proposal should be clarified in this regard, it never was.78

The negotiations were carried out with an attitude of strict secrecy that went beyond simply not keeping the public informed. Monahan describes the trepidation with which governments began the process: "Everyone had one eye cast over his or her shoulder, contemplating the risks of failure... ,"79 Barry Toole recalled that at a meeting of senior officials in advance of the Meech Lake first ministers' conference, no record of the proposals could be retained by the delegates. "[Secretary to Cabinet for Federal-

Provincial Relations, Norman Spector,] insisted [on] referring to Meech Lake as

'Homer' and he didn't want anyone to call it anything else. He insisted over the two or three days we met [in Ottawa] that every document that was used during the day or any other thing was turned in to the chairman so that nothing leaked."80 From the officials'

Barry Toole, interview with author, 5 June 2007. Monahan, 70. Monahan, 63. Barry Toole, interview with author, 5 June 2007.

50 perspective, the cloak and dagger approach continued right up until 'Homer' was transformed into the initial political accord.

The negotiations during which that transformation took place were held at a federal government retreat on a small lake in the Gatineau Hills near the town of

Chelsea. On the shores of the lake stands Wilson House, purchased in 1979, a kind of

"summer camp" for the government.81 The premiers assembled there for a first ministers' conference on 30 April 1987. Brian Mulroney was used to tough bargaining sessions. Much of his career as a lawyer had been spent in labour negotiations, and he applied the same tactics at Meech Lake. Barry Toole noted that "watching Mr. Mulroney negotiate was remarkable."

While the first ministers negotiated in seclusion, their officials were left to wait out the process on the first floor of Wilson House. One account has it that the Attorney

General of Manitoba was physically blocked from seeking out his Premier during the negotiations.83 For more experienced hands at constitutional negotiations, the meeting was surprising for the total lack of access of officials to their premiers, but nothing to worry about. Toole recalls, "[A] premier would come out and all of his people would gather around and they would have a kind of a meeting. Now when Richard Hatfield came out, he waved at us and we asked him what was happening and he said, well, things are going on alright, but he wasn't particularly forthcoming. Not that we were bothered by that, I think we would have been bothered if he had been very forthcoming

Cohen, 3. Barry Toole described Wilson House as a "summer camp." Interview with author, 5 June 2007. Wilson House had played host to another episode in Canadian constitutional history. Joe Clark marshalled members of his caucus there in July, 1980, to craft a response to the federal government's unilateral repatriation strategy, see Sheppard & Valpy, 90-93, through which the name of the lake is consistently misspelled as "Meach." 82 Barry Toole, interview with author, 5 June 2007. Toole observed Mulroney's negotiating style at the Langevin meeting. Cohen, 13. See also Brian Mulroney, Memoires (Toronto: McClelland & Stewart, 2007).

51 about some of the issues." Toole even organized a party of officials that headed into

Chelsea for lunch.84

While the officials waited (or fretted), the Accord was taking shape. Quebec secured all agreement to all five of its proposals. In order to satisfy the concerns of

Alberta Premier Don Getty, a section dealing with the Senate was added. It called for new Senators to be drawn from a list of names submitted by the province concerned. A commitment was also made to discuss Senate reform at annual first ministers' conferences on the constitution. To satisfy Newfoundland Premier Brian Peckford a clause was added stating that fisheries jurisdiction would be discussed at these annual first ministers' conferences. The Accord called for two such conferences, one dealing with the economy and the other with general matters regarding the constitution.

Although the premiers had agreed that the Meech Lake conference should deal specifically with Quebec's concerns, most, if not all, believed that equality of the provinces should be maintained. Even Ontario, the most enthusiastic province when it came to Quebec's proposals, had pronounced "the principle of provincial equality... non-negotiable."85 Mulroney had a plan to circumvent this concern: if Quebec got a veto or new jurisdiction, every other province was granted the same. The only exception was the "distinct society" clause, recognizing Quebec's special place in Confederation as the only province with a Francophone majority.

At eight o'clock that evening, the first ministers announced to the press that they had a deal. The speed with which they had managed an agreement amazed both the

Barry Toole, interview with author, 5 June 2007. Monahan, 71. Monahan, 98.

52 participants and observers alike. Richard B. Hatfield, who had been party to every constitutional negotiation since the Victoria Charter, remarked of the compromise and co-operation displayed by all parties that "it was beautiful to watch."88 Barry Toole, who had held his post since 1972, felt that "up until we had the meeting with the First

Ministers, I would have said [the odds of success were] half and half."89 The speed with which the Meech Lake Accord was fashioned would later become one of many criticisms. It had taken fifty-seven years to negotiate repatriation. By contrast, the swiftness of the Meech Lake process struck some observers as 'too good to be true.'

At first there were kudos all around for the first ministers, but criticism was waiting in the wings. In Fredericton, the Liberal opposition leader, Frank McKenna,

"called on the legislature to pass on 'our sense of satisfaction and gratitude to the first ministers.'"90 Only four days later McKenna was expressing concern in the press, which led to sparring with Hatfield in the Legislative Assembly over the contents of the Accord the following day.91 While opposition party concerns might be expected, and perhaps ignored, resistance to the Meech Lake Accord became much more adamant with the attack of former Prime Minister Trudeau. The first public statement of consequence since his retirement from politics, he assaulted the Accord in articles published simultaneously in the Toronto Star and La Presse on 27 May 1987. Trudeau's polemic was part explanation of the 1981 constitutional settlement, part defence of federal power, and part adhominem battering of the firstministers , especially Brian Mulroney, whom Trudeau labelled "a weakling" and a "sly fox."

87 Andrew Cohen titled his chapter dealing with initial negotiations "The Miracle at Meech Lake." 88 "Tentative Accord Struck," Fredericton Daily Gleaner, 1 May 1987, 9. 89 Barry Toole, interview with author, 5 June 2007. 90 "Mulroney Congratulated On All Sides in Commons," Fredericton Daily Gleaner, 1 May 1987,1. "Possible Erosion of Federal Powers Worries McKenna," Fredericton Daily Gleaner, 4 May 1987,1. "Premier Proud of Agreement: McKenna and Hatfield Spar," Fredericton Daily Gleaner, 5 May 1987,1.

53 Alas, only one eventuality had not been foreseen: that one day the government of Canada might fall into the hands of a wimp. It has now happened. And the Right Honourable Brian Mulroney, PC, MP, with the complicity of 10 provincial premiers, has already entered history as the author of a constitutional document which... will render the Canadian state totally impotent. That would destine it, given the dynamics of power, to be governed eventually by eunuchs. Throughout May 1987, opposition mounted across the country, as interested parties began to examine the Accord more closely

The premiers met again on 3 June 1987, in the Langevin Block of Parliament to finalize the terms of the Meech Lake Accord and translate the political agreement into the legal text of a constitutional amendment. While some accounts suggest that the premiers and their officials expected it to be a relatively brief meeting, it turned into a gruelling, all-night bargaining session. The New Brunswick delegation, according to

Barry Toole, expected a long meeting. "I think anyone who thought it was just a question of getting the words right didn't think about it very much because there were a lot of ostensible complications in it."93 In the wake of criticism David Peterson, Premier of Ontario, and Howard Pawley, Premier of Manitoba, had both developed concerns over the Accord. Peterson, leading the government of Canada's most multicultural province, was particularly concerned about the effects of the distinct society clause on the rights of Canadians whose ethnic heritage was not British or French. Pawley, the only New Democrat Premier shared Peterson's concerns and was also worried about the limitation on the federal spending power for the development of new social programmes.

92 Pierre Elliott Trudeau, "Say Goodbye to the Dream of One Canada," Toronto Star, 17 May 1987, quoted in Donald Johnston, ed., Pierre Trudeau Speaks Out on Meech Lake (Toronto: Stoddart/General Paperbacks, 1990), 22. The gendered/sexualized nature of Trudeau's comments here deserve further analysis. 93 Barry Toole, interview with author, 5 June 2007.

54 94 While very minor changes were made to the Accord, it largely retained its original form when translated into legalese. The meeting lasted nineteen hours, finally concluding at five o'clock in the morning.

The notion of an all-night bargaining session and a constitutional amendment

"agreed to in the dead of night," was another aspect of the process that would haunt the

Accord. At dawn on 4 June 1987 however, the Meech Lake Accord looked like a done deal. Quebec was the first province to ratify the agreement on 23 June 1987.95 Under the formula adopted in 1981, amendments made under the "seven provinces comprising 50 percent of the national population" rule had to be ratified in three years. In addition, because the Meech Lake Accord proposed amendments to two areas that required unanimous consent - the Supreme Court and a change to the amending formula itself- it was agreed that the entire package would be subject to unanimous ratification by all eleven governments.96 The time limit provision from the seven provinces/fifty per cent formula was tacked on to the unanimity formula, making the Accord an especially difficult amendment to ratify.

The Constitution Amendment, 1987, as it was formally entitled, consisted of three parts.97 The first document was the political accord agreed to at Meech Lake and amended to reflect the final agreement at Langevin, often called the Meech Lake

Communique. The second component was the Motion for a Resolution to Authorize an

Amendment to the Constitution of Canada, drafted in advance as each of the provincial legislatures had to pass identical motions. The third document, sometimes called the

94 Monahan, 125. 95 This was the same date that Robert Bourassa formally rejected the Victoria Charter in 1971. It started the countdown on the three year time limit for ratification by the remaining provincial legislatures and Parliament. 96 Gordon Robertson, A House Divided (Halifax: Institute for Research on Public Policy, 1989), 16. All three documents are included here as appendicies B, C and D.

55 Langevin Accord, was the Schedule: Constitution Amendment, 1987. This was the actual

text of the amendment to be inserted into the Constitution Act, 1867 and the Constitution

Act, 1982.9S The Schedule consisted of seventeen sections that articulated Quebec's five

proposals plus the Senate appointment provision outlined in the Communique.

The first section was the "distinct society clause" (the first proposal articulated in

the Mont Gabriel speech). It included "recognition that the existence of French-speaking

Canadians, centred in Quebec but also present elsewhere in Canada, and English-

speaking Canadians, concentrated outside Quebec but also present in Quebec,

constitutes a fundamental characteristic of Canada."99 In addition, Section 1 denoted

Quebec as "constituting within Canada a distinct society"; noted that it was the role of

the Government of Quebec to "preserve and promote the distinct identity of Quebec";

and made it the responsibility of Parliament and the other provincial legislatures "to

preserve" the fundamental characteristic outlined in l(l)(a).100 A final clause indicated

that nothing in Section 1 derogated from the powers of the legislatures.101 In addition,

Section 16 indicated that nothing in Section 1 affected Sections 25 (protection of

existing Aboriginal and treaty rights), 27 (the right of Canadians to preserve their

multicultural heritage) or 35 (the affirmation of existing Aboriginal and treaty rights) of

the Constitution Act, 1982 or Section 91(24) (federal jurisdiction over "Indians and lands

reserved for Indians") of the Constitution Act, 1867.102 The second section of the Accord

dealt with the Senate provision outlined above.

The British North America Act was renamed the Constitution Act, 1867 at the time of repatriation. All previous amendments were renamed in like fashion. 99 Constitution Amendment, 1987, Section l(l)(a). 100 Constitution Amendment, 1987, Section 1(3); 1(2). 101 Constitution Amendment, 1987, Section 1(4) Constitution Amendment, 1987, Section 16.

56 Section 3 responded to Quebec's proposal that it be granted increased authority over immigration with fiscal compensation, and that administrative arrangements over immigration be entrenched in the constitution (the second Quebec proposal). Sections 4 and 5 were minor changes required for the other amendments. Section 6 dealt with the

Supreme Court of Canada (the fifth Quebec proposal). First, the Court and its composition were entrenched in the constitution. This included the provision that three justices be selected from the Civil Bar of Quebec. Second, the provision for selection of judges changed. Vacancies would be filled from a list provided by the province concerned.103

Section 7 dealt with the federal spending power (the third Quebec proposal). The federal government was obliged to offer fiscal compensation for any province that should choose to opt out of a shared-cost programme, providing the province offered a programme "compatible with the national objectives."104 Shared-cost programmes include initiatives such as Medicare. Health is an area of provincial jurisdiction under the Constitution Act, 1867, but the federal and provincial governments jointly fund health care. This allows the federal government to use its more extensive financial resources to pursue its policy objectives in areas outside its legislative competence and ensure that such programmes are national in scope. Section 8 called for future constitutional conferences, as discussed above.

Section 9 changed the amending formula (the fourth Quebec proposal). As indicated above, the easiest way to accede to Quebec's proposals while maintaining the equality of the provinces was to grant to all provinces whatever new power was granted

103Constitution Amendment, 1987, Section 6(101A); 6(101B)(2); 6(101C)(1). 104 Constitution Amendment, 1987, Section 7(106A)(1).

57 to Quebec. Since Quebec had asked for a veto over changes to central institutions, the portion of the amending formula requiring unanimous consent was extended to include changes to the Senate, the number of Senators representing each province, the principle of proportionate representation in the House of Commons, the extension of existing provinces into the territories, and the establishment of new provinces.105 Sections 10 through 12,14, 15 and 17 made other technical changes. Section 13 established items to appear on the agendas of future first ministers' conferences, agreed to in order to meet the concerns of Alberta and Newfoundland, as outlined above.106

The Meech Lake Accord was the product of executive federalism, as were all of the repatriation attempts, most constitutional amendments, and the repatriation exercise of 1981. Unlike the 1981 process, however, the first ministers who negotiated the

Accord made virtually no allowance for public input. As the next chapter will demonstrate, this developed into a major source of opposition to the Accord. With the close of the first ministers' conference in the Langevin Block and the passage of the

Accord by the National Assembly, the countdown began on the ratification window for the Accord. One of the most acrimonious periods in Canadian politics had begun. It was to be a debate that would involve scores of ordinary Canadians, including the members oftheNBAHCC.

Constitution Amendment, 1987, Section 9 (41)(b)(c)(e)(h)(i). Constitution Amendment, 1987, Section 13.

58 Chapter 3

"They spring up like mushrooms": Ad hoc Committees, Citizens' Group Activism and Constitution-making

The focus of this chapter is the development of citizens' group activism and its part in the process of Canadian constitution-making. The NBAHCC was similar in structure to other groups that were formed by second wave feminist groups to lobby the government.

Ad hoc committees have formed in Fredericton and elsewhere across Canada to fight for a variety of causes. This chapter will examine the first such organizations by women in the Fredericton area. The purpose is not to give an in-depth survey of the development of second wave feminism in New Brunswick, but to provide some understanding of the historical background from which the NBAHCC sprang and the reason it took the form that it did. Women's organizations were joined by citizens' groups representing a variety of interests that had a stake in the shape of the Charter of Rights and Freedoms.

Women's groups were able to achieve great changes during the repatriation process, and the period has become tremendously important in Canadian feminist history. As a result, expectations for public participation in constitution-making became an important motivating factor in opposition to the Meech Lake Accord for groups like the NBAHCC.

This chapter will explore the differences in perspective over the gains made by citizens during the repatriation round between the public and governments. Alan C.

Cairns has argued that repatriation established two constitutions: a citizens' version focused on the Charter of Rights and Freedoms and a government's constitution that remained focused on intergovernmental issues. An examination of the way participants in the New Brunswick debate over Meech Lake felt about the constitution reflects this

59 generalization. Finally, the membership of the NBAHCC and the reasons that compelled them to actively oppose the Accord are explored. The NBAHCC s core members came from diverse backgrounds, united by a single issue for an indeterminate period. The ad hoc structure they adopted from second wave feminism was one that allowed for maximum flexibility, well-suited to a truly ad hoc organization. As a result of this loose structure's adaptability, there had been myriad "ad hoc committees" in Fredericton and elsewhere working on specific women's issues as they arose. C. Anne Crocker remarks about the ad hoc committee phenomenon: "they spring up like mushrooms... we didn't need to have a big structure, to become incorporated, all we needed was to collaborate and co-operate."1

Women's organizations have a long history of activism in the Fredericton area throughout the twentieth century, dating back to the campaigns for temperance and suffrage. The principles and organizational model out of which the NBAHCC grew are rooted in second wave, mid-twentieth century feminism. Most of the active members of the Committee began their involvement in feminist issues in the late 1960s or early

1970s. Feminist action in Fredericton followed a pattern similar to that of other places in

Canada. The 1970 publication of the Report of the Royal Commission on the Status of

Women (RCSW) stimulated a very active period of feminist organization across Canada.

For example, the National Action Committee on the Status of Women (NAC) was founded in 1971 to lobby for the implementation of the RCSW report's recommendations.2 These recommendations included the idea that governments establish arm's-length advisory councils with which to consult on women's issues.

1 C. Anne Crocker, interview with author, 22 March 2007. 2 Jill Vickers, Pauline Rankin and Christine Appelle, Politics as if Women Mattered: A Political Analysis of the National Action Committee on the Status of Women (Toronto: University of Toronto Press, 1993), 4.

60 Federally, the Canadian Advisory Council on the Status of Women (CACSW) was established in 1973.3 In New Brunswick, women organized to lobby the provincial government for action on the RCSW's recommendations and various women's issues.

Second wave feminists in Fredericton began to organize formally in the 1960s with a chapter of the group Voice of Women.4 This group mainly lobbied the government around issues of peace and conflict. Francophone women based in Moncton were the first to organize around the RCSW report, forming LES FAM (Liberte, Egalite,

Sororite - Femmes Acadiennes de Moncton) in 1973, but these efforts soon spread to

Fredericton and across the province.5 NBAHCC member C. Anne Crocker recalls the form the organization took in the capital: "It was the Fredericton Ad Hoc Committee on

Women's Issues... of which I was a member that lobbied for an Advisory Council on the Status of Women, and lobbied, very effectively, to get women onto juries."6 The

Conservative government of Richard B. Hatfield enacted legislation establishing the

New Brunswick Advisory Council on the Status of Women (NBACSW) in 1975, although the first members were not appointed until December 1977.7 Crocker was named to the original NBACSW as Vice-Chairwoman.8 During the 1970s, the number of organizations advocating for women or serving their needs multiplied in New

Brunswick. For example, Crossroads Houses for women victimized by spousal abuse opened in Fredericton, Saint John and Moncton throughout the 1970s and a rape crisis

3 Vickers et al, 78. 4 Elspeth Tulloch, We The Undersigned: A History of New Brunswick Women, 1784-1984 (Fredericton: New Brunswick Advisory Council on the Status of Women, 1985), xviii. The exact date of founding is unknown. 5 Tulloch, xviii. 6 C. Anne Crocker, interview with author, 22 March 2007. 7 Brenda Sansom, "Chairperson's Message," in Wendy Johnston and Nadine Goguen. 20lh Anniversary Scrapbok (Moncton: New Brunswick Advisory Council on the Status of Women, 1997), i. 8 Vera Ayling, "Women's Council Appointed," Saint John Telegraph Journal, 17 December 1977 in Johnston and Goguen, 2-3.

61 centre opened in Fredericton in 1975. As well as creating facilities like these and lobbying the provincial government to support them, other issues arose which drove

Fredericton women to form ad hoc committees.

In 1975 Tobique Women was formed in an effort to make the distribution of

Band housing more equitable on the Tobique Reserve, near Grand Falls-Grand Sault,

New Brunswick.10 At the time, women who were not married or living with a man had no right to Band housing and there was nothing to stop a man from throwing his partner out of a Band-subsidized house. Matters were made worse for Aboriginal women through the sexist provisions of the Indian Act. Under the legislation, which governs the terms under which one is recognized by the federal government as having Indian status, a woman who married a non-status man lost her own status. An Indian man who married a non-status woman, however, not only kept his status, but his non-Aboriginal wife was recognized as a status Indian. To protest this inequitable situation, which saw many women living in inadequate housing or even tents, the Tobique Women began an occupation of the Band Office in 1977 which lasted several months.11

As the struggle facing women on the Tobique Reserve intensified, the Tobique

Women reached out to non-Aboriginal women's organizations in New Brunswick.

Crocker, who had recently been named to the NBACSW, noted that the Fredericton Ad

Hoc Committee on Women's Issues re-formed to assist Tobique Women with their lobbying efforts.12 Glenna Perley, a member of Tobique Women, recalled for an oral history project the co-operative bond formed with women in Fredericton, "[t]he white

Nancy Janovicek, '"If it saves one life, all the effort...is worthwhile': Crossroads for Women/Carrefour pour femmes, Moncton, 1979-1987," Acadiensis, 35.2 (Spring, 2006): 27-45,27-28. Tulloch, 18. 10Tulloch, 18. 11 Tulloch, 120. 12 C. Anne Crocker, interview with author, 22 March 2007.

62 women helped us a lot more... Right at the beginning Caroline got in touch with some women at the Advisory Council (of the Status of Women) and NAC.. ,."13 Over time, the

Tobique Women joined with other Aboriginal women's groups to focus their protest on changes to the Indian Act that would allow the reinstatement of status for those women who had married non-Aboriginal men. Shirley Bear, another member of Tobique

Women, recalled that the new alliance was named the "Ad Hoc Group for

Reinstatement."14

The NBACSW also raised funds to assist with a hundred mile protest march to

Ottawa from a Quebec reserve and organized a conference on reinstatement. Karen

Perley, a participant in the Tobique action, recalled the surprising support the conference received, "[a]t the outset we wondered, are we just wasting our time here? But there was such a reception. News media, TV, women's groups... There were all kinds of placards like, 'Feminists Support Tobique Women."15 The Tobique protests over housing and reinstatement forged links between non-Aboriginal and Aboriginal women in New

Brunswick. It also engaged the newly formed NBACSW and brought together the

Fredericton-area women who had lobbied for its creation.

Ad hoc committees such as Tobique Women were formed in other parts of the province and country as well. During the repatriation round of constitution-making in

1980-81, an ad hoc committee played a leading role in what has taken on highly symbolic status in the feminist history of Canada: the "taking of twenty-eight."16 By

1981, when the re-elected Liberal government of Pierre Elliott Trudeau was attempting

Janet Silman, ed., Enough is Enough: Aboriginal Women Speak Out (Toronto: The Women's Press, 1987), 132. 14 Silman, 202. 15 Silman, 162. 16 Twenty-eight refers to Section 28 of the Canadian Charter of Rights and Freedoms, which guarantees equality of the sexes notwithstanding anything else in the Charter.

63 to proceed with its plan for the unilateral repatriation of the constitution, the federal government had established the CACSW and a department called Status of Women

Canada. Both of these organizations were overseen by the Minister Responsible for the

Status of Women, who at the time was Lloyd Axworthy. The CACSW, which was understood as operating at arm's length from the government, had organized a conference on women and the constitution to take place in Parliament's West Block on

13-14 February 1981. On 6 January 1981 Doris Anderson, President of the CACSW,

1 7 was informed by Lloyd Axworthy's staff that the conference had been cancelled.

Within a week Anderson had resigned, followed by five additional council members and all but one of the nine-member administrative staff.18 While neither the remaining members of the CACSW nor the government reversed their decision to cancel the conference, feminists took matters into their own hands.

A group of women, outraged by what they saw as political interference, met in

Toronto and decided to stage the conference in Ottawa independent of the CACSW and

Status of Women Canada.19 This loose affiliation of activists became known as the Ad

Hoc Committee of Women on the Constitution (AHCWC). The AHCWC was indeed ad hoc - a temporary and loosely organized working group with a limited agenda. Many women who took part in the ad hoc initiative were involved in other organizations such as NAC, which, as an umbrella organization, had difficulty taking a firm stance on the constitution proposals.20 An advantage of the ad hoc approach was that it allowed

Penny Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (Toronto: The Women's Press, 1983), 27, 39. 18 Kome, 40. Kome, 43-44. Their first meeting included feminists Nancy Ruth (then known as Nancy Jackman), Laura Sabia, Linda Ryan-Nye, Kay McPherson and Moira Armour. The organization soon included women working in Ottawa, such as Marilou McPhedran and Pat Hacker, and then across Canada. 20 Vickersetal, 110-111.

64 women to remain active in permanent organizations, such as NAC, while devoting their energies to an organization that was more active over the issue of the constitution. The

AHCWC also involved countless women who played small but crucial roles. The organization of the conference was aided by sympathetic women on Parliament Hill and in the civil service. For example, despite Lloyd Axworthy and Status of Women

Canada's official opposition to the conference, women working for the department made photocopies at the government's expense.21 The fact that these women were assisting an impermanent organization that did not have any official standing as a lobby group, charity or arm's length government-funded council probably made it easier to borrow government resources in aid of the AHCWC s objectives.

In their primary objective, holding the conference the CACSW had been planning, the Ad Hoc Committee was successful. Over 1,300 women from across

Canada attended the conference, which was held in the West Block of Parliament Hill on

14 February, as originally planned and continued the following day at Ottawa's City

Hall.22 It was also the issues that the conference addressed, however, that make the event a major part of the history of the repatriation round. While sex equality rights had achieved some protection in Section 15 (equality rights clause) of the proposed Charter of Rights and Freedoms, they were included with other rights that might be limited under Section 1 (reasonable limits clause), such as equal treatment under the law regardless of age.23 The conference approved a motion calling for a new preamble for

Marilou McPhedran, who worked for the federal government at the time, wrote of the lead up to the conference, "I did absolutely nothing of my job during this time. I mean nothing... I showed up for work but I used the government phone lines for long-distance calling across the country... I left my office in Hull easily four times a day to go to Ottawa to lobby." Rebick, 146-147,148. 22 Kome, 57. "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national

65 the constitution that would recognize the equality of the sexes. This led to a very active lobbying campaign that included encouraging women across the country to contact their members of Parliament and the government to demand a sex equality provision independent of Section 15.

Sexual equality was eventually secured, only to need securing all over again. At a meeting with Ministry of Justice officials, Marilou McPhedran and other members of the AHCWC secured the addition of Section 28.25 The new section accomplished what the inclusion of a sexual equality provision in the preamble would have because of the first word: notwithstanding.26 It means that not even Section 1 (reasonable limits clause) can limit the application of equal rights to persons of both sexes. When the final repatriation accord was negotiated the Charter changed because of the inclusion of the non obstante clause, or notwithstanding clause. Prime Minister Trudeau announced that the non obstante clause would apply to Section 28 on 9 November 1981. In part because of pressure applied by the new Minister for the Status of Women, Judy Erola, who was in close contact with the AHCWC, the federal government quickly reversed its position. On 10 November they contacted the provinces to convince them to exclude

Section 28 from the application of the non obstante clause.28 In the coming days, the

or ethnic origin, colour, religion, sex, age or mental or physical disability." Constitution Act, 1982, Part I, Section 15(1). Section 1 "guarantees the rights and freedoms set out in it [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Constitution Act, 1982, Part I, Section 1. 24Kome,59, 63. 25Kome,75. "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." Constitution Act, 1982, Part I, Section 28. 27 Kome, 85. 28 Kome, 85-86. Roy Romanow, John Whyte and Howard Leeson, Canada... Notwithstanding: The Making of the Constitution, 1976-1982 (Toronto: Carswell/Methuen, 1984), 213.

66 AHCWC worked to orchestrate what was surely one of the largest grass-roots protests in

Canadian political history.

Members of the AHCWC contacted all the women's organizations they could find, and through what amounted to a national phone tree, thousands of identical telegrams poured into the premiers' offices.29 By 17 November 1981 all but one provincial government - Saskatchewan - had agreed to the changes.30 The lobbying campaign had motivated women across the country to contact their premiers and "re­ take" Section 28. The premiers quickly fell into line, which meant that the full torrent of protest fell on the Government of Saskatchewan. Regardless of his reasons, Allan

Blakeney quickly became the villain. For example, a press release from the NBACSW made it sound as if Blakeney had demanded that Section 28 be covered by the non obstante clause, "[a]t Saskatchewan's insistence, the clause guaranteeing sexual equality and the application of the rights in the Charter equally to both sexes have [sic] been modified to allow overriding legislation to be adopted.. .."31 On 23 November 1981 it was announced that Section 28 would be excluded from the application of the non obstante clause and that a slightly amended Section 35, recognizing the existing aboriginal and treaty rights of Native peoples, would be included.32 The "taking of twenty-eight" was complete.

Women were not alone in working to persuade the federal government that the proposed charter of rights ought to take one form or another. The vast majority of this effort took place before the Joint Parliamentary Committee that examined the proposed

29 Kome, 89. 30 Romanowetal, 213-214. 31 Press Release, NBACSW, 20 November 1981. 32 Romanow et al, 214.

67 charter. The Committee heard from ninety groups, five individuals and six governments

over fifty-six days and 270 hours of televised presentations.33 It received briefs or petitions-to-appear from a total of 914 individuals and 294 groups.34 Multicultural

groups, disabled Canadians, Aboriginal Canadians, victims of government wartime

internments and women's groups were among those who presented briefs to the Joint

Parliamentary Committee. It has been described by several authors as a "carnival of

participatory democracy." Alan C. Cairns points out that the shift from executive

federalism as the only means through which constitution-making was practiced

reprioritized constitution-making: "The opening up of the process brought in the public

in the form of interest groups, particularly ethnic organizations and civil rights

advocates. The cumulative effect of these factors was to make the concerns of provincial

governments suddenly of much less importance."35 The focus on the Charter

strengthened the federal government's position vis-a-vis the provinces. It also absorbed

the desire of the Canadian public for involvement in the repatriation of their constitution,

which remained essentially an exercise in executive federalism beyond the debate over

the Charter.

The "taking of twenty-eight" and the Joint Parliamentary Committee hearings

were undoubtedly watershed moments in Canadian constitutional history for the

Canadian public. As Cairns wrote at the time: "The process of constitution-making was

dramatically transformed by the migration of the constitutional discussions from the

intergovernmental meetings in July, August, and September to the televised Joint

33 Romanow et al, 247. 34 Robert Shepard and Michael Valpy, The National Deal: The Fight for a Canadian Constitution (Toronto: Fleet Books, 1982), 137. Alan C. Cairns, "An Overview of the Trudeau Constitutional Proposals," in Alan C. Cairns and Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991), 59-65, 60.

68 Committee hearings from November, 1980 to February, 1981." While the process changed for the federal government for a time, eventually the constitution was repatriated through the normal process of executive federalism. The Joint Parliamentary

Committee process and Trudeau's promise of a "people's package" of constitutional reform centred on the Charter of Rights and Freedoms had captured the imagination of the Canadian public and changed the way they looked at their constitution. In 1981

Cairns predicted that: "Over time, the Charter will fundamentally change the Canadian political system and the very identity of the Canadian citizenry."37 Cairns wrote mainly of the long-term effects of legal decisions emerging from Charter challenges, arguing that "[o]ur children will be very different people because of this Charter."38 In the years immediately following repatriation, which included the debate over the Meech Lake

Accord, the effect of public participation was to have just as great an impact on the expectations of those who had been a part of repatriation. Canadians now felt they had a role to play in constitution-making.

More than other groups that lobbied the government for changes to the new constitution, women's organizations felt they had made great strides in their search for equality and political influence. Penny Kome, author of a detailed and often-cited account of the "taking of twenty-eight," describes the meaning of the event for the

Canadian women's movement:

A political earthquake occurred in Canada in 1981, dramatically changing the foundation for government policy making... 52 per cent of the population rose up angry, scaring the hell out of federal and provincial politicians. Organized women wrote a sexual equality clause into the new Canadian constitution over

36 Cairns, 60. Cairns, 62. Caims, 62.

69 opposition from the federal government and defended it against revision by the provincial governments. In the process, they proved themselves to be a formidable national political force, knocking a Cabinet Minister out of his status of women portfolio.39 The years following the repatriation of the constitution saw the zenith of second wave feminism's influence over the political process. For example, during the 1984 federal election NAC staged a nationally televised leaders' debate in Toronto. Brian

Mulroney, John Turner and Ed Broadbent each argued for their party's credentials in the first and only debate on women's issues in a federal election. The debate has been described as the height of influence for NAC, the umbrella organization for feminist groups in Canada.40 From the perspective of feminists, the way constitution-making - and even electoral politics - functioned had shifted towards inclusion.

Those who speak for the various groups that have won a constitutional niche for themselves are deeply suspicious of processes of constitutional change from which they are excluded. The perspective was different from those on the inside of executive federalism and constitution-making. The importance of the public's participation and events such as the "taking of twenty-eight" is not as evident in government accounts of the repatriation round.

In Canada... Notwithstanding, the "insider" account of repatriation by Roy

Romanow, John Whyte and Howard Leeson, the role of ordinary Canadians receives little attention. It is limited to two brief sections focusing on the Joint Parliamentary

Committee hearings and three pages on the re-inclusion of Sections 28 and 35, much of

Kome,23. Rebick, 182-183.

70 which is given over to a defence of Alan Blakeney. Donald Dennison, who served as an intergovernmental affairs officer and later Deputy Minister in the New Brunswick government through both the repatriation and Meech Lake rounds, reflected this difference in perspective, "I don't think... that 1981 was any magic period of public involvement."42 In Dennison's view, the public consultation over the Charter was an aberration within the regular process of constitution-making, "There were moments... in

'81 where there was a lot of involvement in terms of appearances before the

Parliamentary committees, et cetera, but that was principally about the Charter... but there had been a long history of negotiation over other issues...."43 While government officials such as Donald Dennison note differences in process between repatriation and the Meech Lake Accord rounds, they tend to focus on the secrecy with which government negotiations were conducted.44 They do not focus on the quotient of public participation of the various negotiations. Moreover, they tend to downplay the impact of public participation.

The importance of public consultation versus the importance of executive federalism to the average Canadian is at the heart of Cairns' observations on the effects of the repatriation process and the Constitution Act, 1982. He argues that a bifurcation in constitutional perception occurred and by extension an understanding of what kind of constitution-making process is appropriate. The result was two different constitutions: a citizens' constitution, which governs the way individuals interact with their governments; and a governments' constitution which determines the way governments

41 Romanow et al, 246-248,250-256,212-214. 42 Donald Dennison, interview with author, 11 July 2007. Donald Dennison, interview with author, 11 July 2007. This was also the case with Barry Toole, who served as Deputy Minister of Intergovernmental Affairs at the time of both repatriation and in the early stages of the Meech Lake Accord round. Barry Toole, interview with author, 5 June 2007.

71 interact with each other.45 Within the Constitution Act, 1982 are captured the two competing visions for Canada's constitution. The Charter of Rights and Freedoms is at the heart of the citizens' constitution. Cairns notes that the Charter has given Canadians outside of Quebec a sense of ownership over their constitution, "by defining [Canadians] as bearers of rights, as well as by according specific constitutional recognition to women, aboriginals, official-language minority populations, ethnic groups... and to those social categories explicitly listed in the equality rights [Section 15] of the

Charter."46 In other words, it captures the spirit of citizen participation from the repatriation round.

By contrast, the amending formula agreed upon in the Constitution Act, 1982 focuses entirely on participation of governments and has no role for the public. This leads Cairns to conclude that, "[t]he constitutional compromise of 1982 is, accordingly, unstable, as government domination of the amending process is considered illegitimate by many Canadians."47 The upshot of all this is that, contrary to Pierre Elliott Trudeau's argument that the constitutional settlement of 1981 had created a "federation [that] was set to last a thousand years," the situation was inherently unstable.48 Apart from the absence of Quebec in that agreement, the very text of the Constitution Act, 1982 contained contradictory elements. The Meech Lake Accord, in Cairn's words,

Alan C. Caims, "Citizens (Outsiders) and Governments (Insiders) in Constitution-Making: The Case of Meech Lake," in Alan Cairns; Douglas E. Williams, eds., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991), 108-138,108-109. 46 Cairns, 109. 47 Cairns, 109. 48 Pierre Elliott Trudeau, "Say Goodbye to the Dream of One Canada," Toronto Star, 17 May 1987, quoted in Donald Johnston, ed., Pierre Trudeau Speaks Out on Meech Lake (Toronto: Stoddart/General Paperbacks, 1990), 20.

72 "aggravated the uncertainties derived from the previous bout of constitutional change.'

He elaborates:

[Charter Canadians] do not view executive federalism as simply an expeditious way of striking intergovernmental deals away from the probing television cameras. Rather, it is a potential threat to whatever constitutional status they have won or, as for Aboriginals and women in the 1980-81 constitutional discussions, were on the verge or winning. They are deeply hostile to the Meech Lake process in which private intergovernmental bargaining is followed by an ex cathedra announcement of a constitutional fait accompli.. .5 The Meech Lake Accord placed these two competing constitutional visions in direct conflict with one another.

The constitutional identity of the core members of the NBAHCC was rooted in the liberal, individualistic philosophy of the Charter of Rights and the Charter-style constitution-making of the repatriation round. The Meech Lake Accord, both in substance and in the style of its negotiation, clashed with this new constitutional conception. The members of the Committee deplored what they saw as an unscrupulous degree of government secrecy and an unacceptable exclusion of the public from the

constitution-making process during Meech. Gayle MacDonald, one of the core members of the NBAHCC, had always been distrustful of executive federalism, despite its expediency: "[secretive government negotiation has been] a non-starter, as long as I've been alive. But people were better organized to deal with it [by the time of Meech]."51

The absence of consultation with the women's movement - which had played such a pivotal role in the repatriation/CWter process - smacked of outright sexism. For

49 Allan C. Cairns, "Political Science, Ethnicity, and the Canadian Constitution," 166. 50 Allan C. Caims, "Citizens (Outsiders) and Governments (Insiders) in Constitution-making: The Case of the Meech Lake," 113. 51 Gayle MacDonald, interview with author, 11 June 1007.

73 MacDonald the dismissal of women's concerns was patronizing, "I think a lot of us were really, really tired of being patted on the head and told that we should be home cooking and pregnant."52 For feminists who perceived that their constitutional standing was threatened by the Meech Lake Accord, there was a well tried avenue of protest available to them: forming an ad hoc committee.

"Ad hoc" groups or committees - like the early Fredericton groups and the

AHCWC described above - tended to share organizational features and common origins in second wave feminism. The NBAHCC was no exception. It is impossible to say when the first ad hoc committee was formed to fight a feminist cause or what that cause was.

The literature on second wave feminism in Canada is littered with references to ad hoc committees however, and it seems that C. Anne Crocker's description of their prevalence is apt: "they would just spring up like mushrooms."53 Ad hoc committees formed to take action on a cornucopia of challenges that confronted second wave feminists. For example, the forerunner of NAC, which arranged the 1972 Toronto conference at which the organization was founded, was called the National Ad Hoc

Committee on the Status of Women.54 Groups bearing the name "ad hoc" were also organized to lobby for implementation of the RCSW recommendations, changes to the

Indian Act and the strengthening of sex equality provisions in the Charter of Rights and

Freedoms. All of these groups shared a fluid structure without set membership lists or fees, formal executives, by-laws, incorporation as official organizations or offices. It is true that all of them had a dedicated group of individuals at their centre, but, in most

52 Gayle MacDonald, interview with author, 11 June 2007. 53 C. Anne Crocker, interview with author, 22 March 2007. Judy Rebick, Ten Thousand Roses: The Making of a Feminist Revolution (Toronto: Penguin Canada, 2005), 26-27.

74 cases, none of these persons ever took on the title of president or chair. Less involved participants were able to drift in and out of the organization, contributing when they had the time, interest or resources to do so. All of these groups also discontinued when they had accomplished their goal, although they re-formed on occasion when similar

challenges arose. The NBAHCC shared all of these characteristics.

Although ad hoc committees have very fluid and unofficial memberships, there

remains a core group of leaders who plan strategy and delegate responsibilities to more

transient members. As few records are kept and official positions are rarely created, it is

difficult to discern precisely who leads an ad hoc committee at any given time. Through

archival documents and research interviews it is possible to gain a general understanding

of the people at the centre of the NBAHCC and what their responsibilities were. The

core members of the NBAHCC were C. Anne Crocker, Gayle MacDonald, Max Wolfe

and Elaine Wright. In addition to these four, a variety of persons participated in the

campaign to lobby the government. This group, however configured, called itself the

"Fredericton Chapter" of the NBAHCC. While there were other chapters in Saint John

and Moncton, it was the Fredericton cell that communicated with the press, appeared at

the hearings of the Select Committee of the New Brunswick Legislative Assembly on

the 1987 Constitutional Accord (SCNBLA) and generally constituted the leadership of

the province-wide "ad hoc movement" against Meech.

C. Anne Crocker had a long history of involvement with feminist causes in the

Fredericton area. As noted above, Crocker was appointed to the first NBACSW and was

active in the ad hoc committee that supported the Tobique Women. In addition, she was

involved in the establishment of the Fredericton Transition House and served as

President of the Muriel McQueen Fergusson Foundation, which was established to fight

75 domestic violence.55 Crocker commented on how her involvement in feminist causes led her to become concerned about the Accord: "I had been involved for a long time with the feminist movement - equality seeking activities - and it appeared to me that after the

success of the Charter of Rights and Freedoms that this Meech Lake Accord had the

potential, at least, to throw a significant spanner into those works."56 During the time she

spent as part of the NBAHCC she worked as the University of New Brunswick Law

Librarian. Crocker was born in Moncton and is bilingual. She describes her political

outlook as that of a "Trudeau Liberal."57 Crocker handled the majority of

communication with the press on behalf of the NBAHCC. She co-wrote and co-

presented the NBAHCC s brief before the SCNBLA.

At the time of the Meech Lake Accord debate, Gayle MacDonald was a doctoral

candidate with the Department of Sociology at the University of New Brunswick.

MacDonald, originally from Cape Breton, has had long exposure to politics, "[m]y dad

was... a municipal politician, and I grew up with politics. And it's just chess, or Russian

roulette, but it's very much a game. And you can think that a person in power has your

principles, but in the end it's whatever is politically expedient."58 MacDonald was a

founding member of the Student Women's Committee at the University of New

Brunswick as a graduate student, which protested sexist practices on campus.59 She

participated in the "taking of twenty-eight" campaign in 1981. MacDonald was also the

founder of the New Brunswick Chapter of the Women's Legal Education and Action

Fund (LEAF). Since attaining her PhD she has been a professor of sociology at Saint

55 C. Anne Crocker, interview with author, 22 March 2007. Administrative records, Muriel McQueen Fergusson Foundation fonds, University of New Brunswick Archives. 56 C. Anne Crocker, interview with author, 22 March 2007. 57 C. Anne Crocker, interview with author, 22 March 2007. 58 Gayle MacDonald, interview with author, 11 June 2007. 59 Gayle MacDonald, interview with author, 11 June 2007.

76 Thomas University in Fredericton. She is bilingual. MacDonald tended to be in charge of fundraising for the NBAHCC. She co-wrote and co-presented the NBAHCC's brief before the SCNBLA with Anne Crocker.

Max Wolfe moved to Jemseg, New Brunswick from Alberta in 1981. He was born in Glasgow, Scotland and was heavily involved in Labour Party and student politics before immigrating to Canada in 1958. In Alberta he was a member of the New

Democratic Party and ran for office. Wolfe opposed the Accord for three reasons: "point one... the whole Meech Lake process looked like a gutting of the federal Parliament and a weakening of Canada... Point two, the process... [Point three, to] a significant extent... an overall animus to Brian Mulroney."60 During the Meech Lake period, Wolfe had a small legal practice in Jemseg and dabbled in journalism, as well as running a bed and breakfast/hobby farm with his spouse. Today he writes a regular column for the

Saint John Telegraph-Journal. Wolfe's role at the centre of the NBAHCC did not start until after he attended a day-long conference organized by the Committee in Moncton on

17 April 1988. Although Wolfe helped write the NBAHCC's statements and briefs, he did not co-present the groups brief before the SCNBLA. Instead, Wolfe presented his own brief.

Elaine Wright was a long standing member of both the federal and provincial

Liberal parties. Sadly, in the intervening years Elaine Wright has passed away.

Relatively little is known about her experience with the NBAHCC. MacDonald commented on Wright's connections within the provincial government of Frank

McKenna, "Elaine could get a message to the premier in a day. She'd done tonnes of

Max Wolfe, interview with author, 5 April 2007.

77 political campaigns. And she knew him personally." Historian Stephen E. Patterson, who was active in the Liberal Party and an opponent of the Accord, recalls, "Elaine would always be the point person [in efforts to organize Liberals nationally] here in New

Brunswick. [She] was a wonderful organizer, of things and of people." By all accounts

Wright's organizational skills and connections, especially within the federal and

provincial Liberal parties, made her indispensable to the anti-Meech side.

In addition to these core members, there were others who shared the work of the

NBAHCC. Noella LeBrun, who was involved in women's issues in the Fredericton area

and had connections with the NBACSW, wrote letters to the provincial government and

helped with fundraising.63 Sherron Hughes was a lawyer in Fredericton who also wrote

letters and helped apply for funding. She has since passed away. There were also two

individuals who frequently contributed to NBAHCC discussions who, during the Meech

Lake Accord years, both worked for governments. Their contribution to the NBAHCC

was kept secret as it was felt it might endanger their careers in the civil service. It was

also the case that some individuals that assisted the NBAHCC from time to time were

members of other organizations that lobbied the government in opposition to the Accord.

One such example is Willi Evans Wolfe, the spouse of Max Wolfe, who appeared before

the SCNBLA on behalf of the Jemseg Women's Institute and the Women's Institute of

New Brunswick.64

The NBAHCC was an outgrowth of second wave feminism in Fredericton. Many

of those who participated in the Committee were involved in the campaigns that defined

61 Gayle MacDonald, interview with author, 11 June 2007. Stephen E. Patterson, interview with author, 16 July 2007. Noella LeBrun, letter to Frank McKenna, 12 February 1988, Department of Intergovernmental and Aboriginal Affairs files, "Meech Lake Strategy," RS 1006, PANB. 64 Willi Evans Wolfe, interview with author, 5 April 2007.

78 the women's movement in New Brunswick. As well, the structure of the organization was based on ad hoc committees that had been formed to take on those challenges. That battle, along with many others to shape a more inclusive constitutional vision for Canada through the Charter of Rights and Freedoms, was an important part of the repatriation round of constitution-making. It shaped a new understanding among ordinary Canadians of their rights in society and gave them a sense of ownership over their constitution. In

Allan C. Cairns' words, it gave Canadians a citizens' constitution, which stood at odds with the traditional governments' constitution, as exemplified by the amending formula agreed to in the Constitution Act, 1982. The perception of an enlarged role for the public in constitution-making, coupled with the chasm in constitutional perception between governments and their citizens, is essential to understanding why groups like the

NBAHCC opposed the Meech Lake Accord.

79 Chapter 4

Consciousness-raising, a Conference and Committee Hearings: The New Brunswick Ad Hoc Committee Lobbies the Government

On the morning of 4 June 1987, the first ministers, weary from their all-night negotiating session, announced that they had agreed upon the legal specifics of the Meech Lake

Accord. A few months later the NBAHCC was formed to lobby the New Brunswick government against its ratification. This chapter traces the NBAHCC from its origins in the summer of 1987 to its appearance before the SCNBLA. Throughout late 1987 and early 1988 information meetings were organized across the province to raise the level of public awareness about the Accord. On 17 April 1988, the NBAHCC held a conference on the Accord in Moncton. The conference was a major undertaking and drew interested parties from across the province and across Canada. The NBAHCC appeared before the

SCNBLA in 1989. This was the height of the Committee's interaction with the Liberal government and the time when the Committee members thought they had the best chance of stopping the Accord. This chapter also analyzes the structure of the NBAHCC and how it worked to form a network of interested persons across the province. Since the

Committee was tied to national and central Canadian groups that opposed the Accord, these connections are also explored.

This thesis aims to recount the history of the Meech Lake Accord from a citizens' group perspective in concert with the related government history. The

NBAHCC is well-suited to such an approach as two of the four core members had close ties to the governing Liberal party in New Brunswick. This chapter explores that connection as well as the New Brunswick government's response to the Meech Lake

80 Accord over the same period. The election of a new Liberal government in autumn of

1987 had a major impact on the course of the Accord. Liberal premier Frank McKenna's refusal to proceed with its ratification as negotiated created a unique opportunity for opponents of the Accord in New Brunswick to encourage the government either to force desired changes or kill Meech Lake. The ambiguous position of the McKenna government was difficult to explain to the other ten governments concerned with the

Accord. This confusion is also examined here. The hearings of the SCNBLA were a return to the participatory constitution-making of the repatriation period, but one that was ultimately short lived. The chapter concludes with an examination of the SCNBLA and the NBAHCC's presentation at the hearings examining the Accord.

Given the fluid structure of ad hoc committees, it is difficult to precisely date the the Committee's founding. It sprang to life at some point during the summer of 1987.

Informal discussions between various concerned persons - most likely C. Anne Crocker,

Elaine Wright and Gayle MacDonald - led to the idea to form an ad hoc committee.

Crocker recalled the ease with which those concerned could organize on the ad hoc model, "we weren't interested in spending a whole lot of time thinking up a fancy name... and we weren't already an organized group. We were women who knew each other... and if something came up that one of us or two of us or half a dozen of us felt needed to be addressed than we would just fire up the telephone."1

True to its ad hoc nature, the committee did not decide on long-term strategy or set definite goals beyond raising awareness about what they saw as the dangers of the

Accord. As MacDonald recalls, "when we started out, we didn't really think about where we were headed, anymore than... we thought this thing [had] to be stopped and

1 C. Anne Crocker, interview with author, 22 March 2007.

81 people [had] to be educated, but it was a juggernaut."2 The first public meeting was held the evening of 28 September 1987 in the St. John Room at the Beaverbrook Hotel in

Fredericton. Notices for the meeting began with the question, "Is Meech Lake a

Mistake?"3 According to MacDonald it was well attended, "hundreds showed up at the main ballroom and the media was all over the place."4 From this meeting, the

Fredericton chapter built a list of interested individuals that soon expanded to include seventy-five people in the Fredericton area alone. The NBAHCC was up and running.

The Committee then embarked on a campaign of what Crocker described as

"consciousness-raising," a phrase popular in the women's movement in the 1960s and

1970s. The NBAHCC worked to build a network of interested individuals across the province. The goal was to share information with key people who could then work to raise awareness of Meech Lake Accord issues in their own communities. Wherever the

Committee found interested individuals willing to donate their time and energy, they formed cells or chapters of the NBAHCC. Throughout late 1987 chapters sprang up in

Moncton, Saint John and Shippagan.5 Information forums were organized by the

NBAHCC in these three cities, in addition to Fredericton. NBAHCC members also met with other organizations. For example, Crocker addressed the Gagetown Rotary on the

Meech Lake Accord in October 1988.6 The strength of the ad hoc model did not arise out of the organization of local chapters. Rather, it was the porous nature of the

2 Gayle MacDonald, interview with author, 11 June 2007. 3 "Is Meech Lake a Mistake?" New Brunswick Ad Hoc Committee on the Constitution fonds, folder 9, series 1, UA RG 355, UNBA. 4 Gayle MacDonald, interview with author, 11 June 2007. 5 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 5, series 1, UA RG 355, UNBA. C. Anne Crocker, "Address to the Gagetown Rotary," New Brunswick Ad Hoc Committee on the Constitution fonds, folder 12, series 2, UA RG 355, UNBA.

82 NBAHCC, which allowed a variety of people from a number of organizations to share information through personal connections.

The links through which the NBAHCC shared information were part of a larger web of reciprocal relationships. This information-sharing network tied the Committee to countless other organizations across the province and across the country. The members of the NBAHCC were all involved in political or community organizations as well as

social causes. Crocker had been involved in a variety of feminist causes - including time

on the NBACSW - and served as President of the Muriel McQueen Fergusson

Foundation during the Meech Lake period. Wright was an important figure in Liberal party politics. MacDonald was active in LEAF and other women's causes. Wolfe had ties to the New Democratic Party and, as a lawyer, had an interest in immigration issues.

All of the core members had ties to other organizations and the people in them. Many of these people, in turn, were members of more formal groups that were also taking a position on the Accord.

Crocker recalled that the ad hoc structure, despite its informal nature, allowed for very efficient information sharing. The lack of any official structure or executive office also allowed the Committee to avoid some of the problems of more formal organizations. Crocker notes that, "[other Ad Hoc chapters] were perfectly free to act independently... However, if we were trying to do something province wide, and it was usually the Fredericton group that would initiate that, then we would contact the other groups... it was pretty loose... [which] was good in a way. People weren't getting out of joint about who had authority to do what."7 When a province-wide initiative was undertaken, word would spread from Fredericton to the other chapters, which would

7 C. Anne Crocker, interview with author, 22 March 2007.

83 then use their local connections to pass on the information. Local chapters were free to act independently.

In addition to peripheral members of the NBAHCC, the four core members also used their connections with other organizations. Elaine Wright, for example, was an important figure in the New Brunswick Liberal Party and knew Patterson, who chaired the party's policy committee.8 Patterson was a member of a national organization that opposed Meech Lake, the Canadian Coalition on the Constitution. The two were able to share information about the Accord and their Meech-related organizations' activities.9

MacDonald commented on the advantage a small province like New Brunswick affords to ad hoc groups, "New Brunswick is a pretty big province geographically, but it's pretty small in terms of population... I think in another province it would have been much more difficult... most of us had people that we knew in other organizations, or had people that we'd worked with in some capacity. So we all drew on our connections."10

The small population of New Brunswick meant that ad hocers could easily connect with other Accord opponents.

The information network of which the NBAHCC was a part also extended out to other ad hoc committees, especially the AHCWC, based in Toronto. While the two organizations were independent of each other, they were both part of a national network of ad hoc committees that had formed to oppose the Meech Lake Accord. The various ad hoc groups communicated, appropriately enough, in a fashion that was "pretty ad hoc."11

Partly because of New Brunswick's unique position as one of only two hold-out

8 Stephen E. Patterson, interview with author, 16 July 2007. Stephen E. Patterson, interview with author, 16 July 2007. Gayle MacDonald, interview with author, 11 June 2007. 11 C. Anne Crocker, interview with author, 22 March 2007.

84 provinces, the NBAHCC received a great deal of national attention. MacDonald recalls how national and central Canadian organizations realized the importance of New

Brunswick: "They said if it's going to be stopped it could be in New Brunswick... So there was a little bit of, I wouldn't call it pressure, it felt more like support."12 The

NBAHCC was never a "branch plant" of the central-Canadian AHCWC, but the two committees shared information with each other. The NBAHCC s informal structure allowed interested New Brunswickers to act autonomously in their communities but kept them informed provincially. The ad hocers in Fredericton acted independently but were happy to help co-ordinate national events. Crocker elaborates, "basically we knew our own community, so it wasn't necessary for there to be this huge national... network. It was a very loose network, but strong enough so that if we needed a bunch of people in

Ottawa on a certain day and at a certain time, it could probably be done."13

They also worked together to capture the attention of the media. For example, in

September 1987 Crocker and Sherron Hughes attended a press conference in Ottawa. It was organized by the AHCWC and included representatives of the Manitoba ad hoc committee.14 Crocker and MacDonald were also featured in a Canadian Broadcasting

Corporation radio documentary about women's opposition to the Accord. It focused almost entirely on the AHCWC and the NBAHCC.15 The radio feature was broadcast the day the NBAHCC held a conference on the Accord in Moncton, the planning for which was also featured on the programme.

12 C. Anne Crocker, interview with author, 22 March 2007. 13 C. Anne Crocker, interview with author, 22 March 2007. C. Anne Crocker and Marilou McPhedran, fax correspondence, September 1987, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 1, UA RG 355, UNBA. 15 Linden Mclntyre and Carol Jerome, "Women and Meech," Constitutional Discord: Meech Lake, CBC Digital Archives, 2006 (6 August 2007).

85 The large network of people, apart from providing information, also stepped in when the NBAHCC conducted a large-scale lobbying effort, such as a mass mailing.16 In this regard the NBAHCC s actions mirrored those of the AHCWC during the

repatriation round. In 1981, a key part of the AHCWC s efforts during the "taking of

twenty-eight" was the ability to orchestrate a massive letter/telephone/telegram

campaign in order to persuade members of Parliament to act on the concerns of

women.17 The AHCWC had access to a mailing list of 1300 women who had attended

their conference on women and the constitution in Ottawa. When women mobilized to

insure the protection of sex equality rights in the Charter of Rights and Freedoms after

the first ministers' settlement of November 1981, these women were called upon to

contact their provincial premiers. Many of the 1,300 women who had attended the

conference on women and the constitution belonged to women's organizations or knew

other women who were concerned. The call to contact politicians fanned out, as with a

1 O

telephone tree, until thousands of women across the country were taking action. Letter

writing and post card campaigns were similarly a part of the NBAHCC s strategy.19

First, however, the Committee had to raise awareness, rouse opponents to action and

build its contact list.

The height of the NBAHCC s consciousness-raising activities was a conference

on the Meech Lake Accord, timed to mark the fifth anniversary of royal assent of the

Constitution Act, 1982, on 17 April 1988. Borrowing a phrase that the AHCWC had first For an example of messages to be sent to politicians by opponents early in the NBAHCC s career, see "Meech Lake Action Bulletin," New Brunswick Ad Hoc Committee on the Constitution fonds, folder 9, series 1, UA RG 355, UNBA. One such mailing campaign is discussed in chapter five. See chapter three for a discussion of women's activism during the repatriation round. 18 For a description of the AHCWC campaign, see Chavia Hosek, "Women and Constitutional Process," in Keith Banting and Richard Simeon, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983), 280-300,292-295. The largest such campaign will be discussed at length in Chapter five.

86 used atop one of its pamphlets, the event was entitled "We Can Afford A Better

Accord."20 The conference allowed the Committee to educate all New Brunswickers who were interested in the Accord. It would also allow them to enlarge their network of interested persons from across the province, allowing for campaigns such as mass mailings. In addition to these benefits, the conference also drew in another person who quickly became one of the core members of the NBACC: Max Wolfe. Prior to the conference, Wolfe was little exposed to the women's movement. He was very impressed with the organization of the Committee, "[I saw the] Ad Hoc Committee [in action and]

I thought, my God, these guys are bright, they're capable, they're competent, they're effective .. .it was a surprise, in all sexist honesty."21 Before anyone could attend, however, the NBAHCC had to find the resources to stage such an event.

The biggest challenge in holding such a conference - and any other activities the

NBAHCC contemplated - was fundraising. Since the organization had no formal membership, there were no membership dues. Nor were there official positions with defined responsibilities to which people were appointed - and, of course, no one received an honorarium or salary. Much of the success the NBAHCC experienced with fundraising over its three years had to do with its connections. Some of the money came from prominent Liberals, for example, who were speaking out against Meech Lake. Izzy

Asper, President of Winnipeg-based CanWest Group and former leader of the Manitoba

Liberal Party, responded to the NBAHCC s request with a cheque for $200.22 They were not always so lucky. The Committee's records are littered with organizations declining

20 "Accord Lays Groundwork For Confederation Breakup," Fredericton Daily Gleaner, 19 April 1988, 1, 3 and AHCWC press release, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 3, series 3, UA RG 355, UNBA. 21 Max Wolfe, interview with author, 5 April 2007. 22 Izzy Asper, letter to Elaine Wright, 18 July 1988.

87 to fund the NBAHCC. The New Brunswick Law Association turned down the

Committee's request for conference funding - twice - citing a lack of information on the

Committee and its proposed activities.23 In this instance, the ad hoc structure may have

worked against the organization. In many others, however, the personal connections of

members of the NBAHCC allowed them to secure funding.

In the months leading up to the conference, the NBAHCC members used all their

connections to raise money. The bulk of this task fell to MacDonald. Crocker recalls,

"Gayle did most of the fundraising... so that we could have this conference in

Moncton."24 MacDonald gave an example of how her connections with LEAF allowed

her to raise funds for the conference, "I went in and gave this rousing speech to the

Board of Directors... trying to get money and they were all pitching over hundred dollar

bills.... I just gave this passionate speech about Canada and how we were holding our

own in New Brunswick and they needed to help us do this."25 LEAF contributed $680 to

the conference funds.26 The single biggest donation came from an active member of the

AHCWC. Nancy Jackman (now Senator Nancy Ruth) donated $2,000 to the NBAHCC

for the conference. Most of the remaining funds needed for the conference were

provided by a $15 registration fee paid by the more than 200 participants.27

23 Letter, New Brunswick Law Foundation to NBAHCC, 15 May 1988, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 12, series 1, UA RG 355, UNBA. Letter, New Brunswick Law Foundation to NBAHCC, 25 October 1988, Muriel McQueen Fergusson Foundation fonds, folder 49, series 1.3, UA RG 354, UNBA. 24 C. Anne Crocker, interview with author, 22 March 2007. 25 Gayle MacDonald, interview with author, 11 June 2007. 26 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 7, series 1, UA RG 355, UNBA. Various conference documents are contained in folders 5-7, including a complete registration kit. 27 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 5, series 1,UARG 355, UNBA.

88 In addition to concerns over funding, the organizers had to recruit conference speakers. Although former Prime Minister Pierre Elliott Trudeau turned them down, he recommended Donald Johnston. A Liberal Member of Parliament, Johnston had gained notoriety in the Meech Lake debate for defying Liberal leader John Turner and opposing the Accord, going so far as to resign his post as an opposition critic and eventually leave the Liberal caucus altogether.28 He was billed as the conference's keynote speaker. In that address he opined that the Meech Lake Accord would lead to the break-up of

Confederation: "Those of you who believe in one Canada must reject Meech Lake." A report on his speech at the conference warranted the front page of the Fredericton Daily

Gleaner and its own sub-story in the Saint John Telegraph-Journal?9 MacDonald credited Wright's Liberal Party connections in helping the NBAHCC secure Johnston's participation. Izzy Asper was also recruited to address the conference, again with the help of Wright's Liberal credentials.30 His participation also received a great deal of attention in the press.

The NBAHCC conference also attracted other ad hocers. Most notably Marilou

McPhedran, who was active in the AHCWC during both the repatriation and Meech

Lake rounds, led a panel on "equality rights, provincial powers and free trade" with

Gayle MacDonald.32 At the time of the conference McPhedran worked as a lawyer for

"Johnston resigns from shadow cabinet citing freedom to speak out over Meech," Fredericton Daily Gleaner, 9 May 1987. Johnston served as external affairs critic in the shadow cabinet. He quit the Liberal caucus on 19 January 1988. 29 See Heather Dunsmuir, "Accord Lays Groundwork For Confederation Breakup," Fredericton Daily Gleaner, 19 April 1988,1, 3 and "Johnston says there will be no second round of accord talks," Telegraph-Journal, 19 April 1988,4. 30 Gayle MacDonald, interview with author, 11 June 2007. 31 See "Asper says 'secret deal' could hurt Francophone rights outside Quebec," Telegraph-Journal, 18 April 1988, 4. Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 7, series 1,UARG355,UNBA.

89 LEAF, an organization with which MacDonald was heavily involved. Patterson was part of a panel discussion on "the issues" of the Meech Lake Accord. He offered a spirited defence of bilingualism in New Brunswick and minority Francophone protection outside of Quebec which was well-received by the Francophones in attendance and widely reported in the press.33 Celine Hervieux-Payette, a former Liberal Member of Parliament

and Trudeau's cabinet, participated in the panel on equality rights, provincial powers

and free trade. The NBAHCC asked Frank McKenna to attend the conference, but he

declined.34 In his stead he sent Intergovernmental Affairs Minister Aldea Landry. The

Minister expressed McKenna's sentiment that he wanted changes to the Accord before it

was ratified.35 The New Brunswick government was also represented by Ellen King,

Deputy Director of the Women's Directorate, who participated in the panel on the issues

raised by the Accord.36

Another panel discussion was led by Myrna Richards, then Chairperson of the

NBACSW, and Crocker on "Women in Action on Meech Lake."37 Among the many

individuals who attended the conference were representatives from a number of

organizations who were developing their own position on Meech Lake. They included

the New Brunswick Aboriginal Council, the New Brunswick Federation of Labour, the

National Association of Immigrant Women and the NBACSW, as well as the other

Stephen E. Patterson, interview with author, 16 July 2007. Laurie Armstrong, "Interest groups say Meech Lake signed in 'reckless haste,' Telegraph-Journal, 18 April 1988,4. 34 Noella LeBrun, letter to Frank McKenna, 12 February 1988, Department of Intergovernmental and Aboriginal Affairs files, "Meech Lake Strategy," RS 1006, PANB. 35 Laurie Armstrong, "Interest groups say Meech Lake signed in 'reckless haste,' Telegraph-Journal, 18 April 1988,1. 6 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 7, series 1,UARG355,UNBA. 37 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 7, series 1,UARG355,UNBA.

90 chapters of the NBAHCC.38 The presence of a number of speakers tied to the New

Brunswick and federal Liberal parties is indicative of the connection several core members of the Committee.

The NBAHCC s ties to the Liberal Party were strategically advantageous.39

Wright and Crocker were members of the federal and provincial Liberal parties. This

connection to the governing party in New Brunswick aided the NBAHCC in its

gathering and distribution of information. Apart from lobbying the government, the

NBAHCC used its connections to pass information gathered from Liberal contacts to

other groups across New Brunswick. In this sense they acted as, in Crocker's words, "a

very loose umbrella organization for a number of other interests that were out there in

the community."40 Elaine Wright was a particularly active member of the Liberal Party

in New Brunswick and had worked many election campaigns. Crocker described her as,

"a real mover and shaker" within the party.41 As noted in the last chapter, Wright could

communicate a message to the premier's office and receive a response in a day. She and

Crocker were able to set up a number of meetings between the NBAHCC and McKenna.

Wright also served as a connection to national groups opposed to the Accord. In

collaboration with her sister who worked in Ottawa, Wright served as the link to the

Canadian Coalition on the Constitution. Her sister was also tied to the Liberal Party and

the two worked to put Meech Lake opponents in contact with each other. Patterson, a

38 Conference documents, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 5, series 1,UARG355,UNBA. The Liberal Party also fit the ideological outlook of the second wave feminism practiced by members of the NBAHCC, particularly that of Crocker. They believed in working through government channels, challenging systemic problems through shifts in government policy and building community organizations to respond to women's issues. For a general discussion on second wave feminism see Rosmarie Tong, Feminist Thought: A Comprehensive Introduction (Boulder/San Francisco: Westview Press, 1989). 40 Gayle MacDonald, interview with author, 11 June 2007. 41 C. Anne Crocker, interview with author, 22 March 2007.

91 member of the Coalition and active in the provincial and federal Liberal parties, recalled that Kelly and Wright put him in touch with other Meech Lake Accord opponents, including historian Michael D. Behiels and Deborah Coyne, who became Newfoundland premier Clyde Wells' constitutional advisor in late 1989.42 The NBAHCC's connections with the Liberals, however, went beyond having the Premier's ear and the ability to

work the party network.

Many opponents to the Meech Lake Accord were either Liberals who had been

attracted to the party by Pierre Elliott Trudeau, or else were fond of Trudeau despite

contrary political loyalties. Many in the NBAHCC shared the same "Trudeauian"

ideological moorings. Crocker confirmed her political orientation by identifying herself,

"as a card carrying Liberal." She continued, "I had a great deal of faith in Pierre Elliott

Trudeau. Personally and politically, okay - intellectually."43 She also recalled that

Wright was an admirer of Trudeau.44 Patterson, who identified himself as a "Trudeau

Liberal," also spoke of the importance of Trudeau's early statements on the Meech Lake

Accord, "Trudeau's intervention motivated people of like mind to recognize what was

going on here and that we couldn't have it both ways. Either his vision of a bilingual and

bicultural country was going to survive or we were going to bring that to an end and

replace it with... recognition of a distinctiveness to Quebec society."45 Max Wolfe was

not a Liberal and had run in several elections as a New Democratic Party candidate.

Stephen Patterson, interview with author, 16 July 2007. Patrick Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991), 208. 43 C. Anne Crocker, interview with author, 22 March 2007. 44 C. Anne Crocker, interview with author, 22 March 2007. 45 Stephen E. Patterson, interview with author, 16 July 2007. Trudeau first commented on the Meech Lake Accord in opinion articles published in the Toronto Star and La Presse on 27 May 1987. See chapter two for elaboration.

92 Regardless of his party affiliation, he confesses an affinity for Trudeau's vision of a centralized and bilingual Canada, "I'm a fan," he says.46

In the first two years of their campaign against Meech Lake all these Accord opponents felt a similar affinity for Frank McKenna, whom they believed shared their ideological perspective. As a result of Wolfe, Crocker and Wright's identification with the individualistic liberalism of the Trudeau-era Liberal Party, the NBAHCC counted the New Brunswick government as an ally in the fight against Meech Lake. In the early

Meech Lake years it is likely that McKenna shared their view. Like most Liberals of his generation, he had idolized Trudeau in his youth and felt an intellectual kinship with the former prime minister's vision of a united, bilingual Canada.47 The utility of Crocker and Wright's connections to the Liberal Party would have been of little importance, however, had the party not formed the government of New Brunswick in 1987.

A critically important event in the history of the NBAHCC and the Meech Lake

Accord took place in autumn of 1987: the fifty-first New Brunswick general election.

The Progressive Conservative government of Richard B. Hatfield had ruled the province since 1970, but by 1987 political change was in the air. Hatfield's credibility had been severely damaged over the course of his last term by a number of scandals and he had faced-down a revolt within his own party in the form of a leadership review.48 On 13

October 1987, the latest possible date for an election permissible under the constitution and provincial electoral law, seventeen years of Tory rule came to a devastating end.

46 Max Wolfe, interview with author, 5 April 2007. Phillip Lee, Frank: The Life and Politics of Frank McKenna (Fredericton: Goose Lane Editions, 2001), 142-143. A number of scandals befell Hatfield during his later years in office, including criminal charges on which he was acquitted. Michel Cormier & Achille Michaud, Richard Hatfield: Power and Disobedience (Fredericton: Goose Lane Editions, 1991), 173,186. The leadership review took place in 1985. Jacques Poitras, The Right Fight: Bernard Lord and the Conservative Dilemma (Fredericton: Goose Lane Editions, 2004), 120-121.

93 The Liberal Party, under the leadership of Frank McKenna, won all of the fifty-six seats in the Legislative Assembly. With the change in government came a major shift in the province's policy on the Meech Lake Accord. As one of the eleven original signatories

Hatfield had defended Meech Lake throughout the election campaign. As opposition leader, McKenna had appeared before the Parliamentary committee that examined the

Accord in the summer of 1987. In his brief he registered a number of concerns over the effect of the Accord, including the weakening of the federal government (most notably its ability to protect minority rights and launch national shared-cost programmes), the reallocation of fisheries jurisdiction, and the protection of equality rights in the Charter of Rights and Freedoms.49

McKenna's concerns might never have come to the fore were it not for the lack of action by Hatfield on the matter before leaving office. The Meech Lake Accord required the approval of Parliament and all ten provincial legislatures. Hatfield may have sensed his government was doomed when it finally went to the polls, but during the summer of 1987 he still commanded a majority government and, with it, the power to recall the Legislative Assembly and ratify the Accord. Hatfield, who later appeared before two government committees to argue in favour of Meech Lake, obviously supported it.50 Moreover, many have speculated that if Hatfield had ratified the Accord,

Manitoba (which for many months was the only other province not to have approved the agreement) might have felt obliged to ratify it as well. This could have happened before

Clyde Wells, who became the most severe in his opposition of all the premiers to Meech

49 Frank McKenna, "Presentation to the Special Joint Committee on the Constitution," 25 August 1987, folder 5, series 2, UA RG 355, UNBA. 50 Hatfield appeared before both the SCNBLA in Fredericton, on 16 February 1989, and the House of Commons Special Committee on the Proposed Companion Resolution to the Meech Lake Accord, commonly known as the Charest Committee, in St. John's, Newfoundland on 12 April 1990.

94 Lake, was elected and had a chance to rescind Newfoundland's ratification of the

Accord.51 The Hatfield question is one of the enduring mysteries of the Meech Lake

Accord story. As this thesis focuses on New Brunswick's experience with the Accord it is worth a brief examination.

The two most senior intergovernmental affairs officials in Hatfield's government, Barry Toole and Donald Dennison, were able to shed some light on the mystery. Toole, who had worked for Hatfield in the Cabinet Secretariat since 1972, remembered that the Premier felt constitutional matters should be debated in the

Legislative Assembly.52 Dennison recalled receiving a telephone call in June 1987 from the Premier in which he sought his help on a question of constitutional policy: "[Hatfield asked] 'What did I say in 1966?' And I said, 'what did you say about what subject in

1966, Premier?' And he said, 'in the legislature about the Fulton-Favreau formula?'"53

Hansard confirmed for Dennison and Hatfield that, while approving of the proposed

amending formula, he felt that there should be hearings on a constitutional proposal of

such magnitude.54 Dennison suspects that this kept Hatfield from ratifying the

agreement, "I assumed he thought that there had to be legislative hearings on the subject

for New Brunswick and at this point the legislature had prorogued for the summer."55

Both Dennison and Toole feel that there is a good chance the Accord's fate might have been different had Hatfield forged ahead. Toole remarked, "I think that if Hatfield had

51 For an example of this, see Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Toronto/Vancouver: Douglas & Mclntyre, 1991), 50. Cohen writes, "[Hatfield] was one of the reasons the deal came undone... his [political] demise was the beginning of the end for the accord." 52 Barry Toole, interview with author, 5 June 2007. 53 Don Dennison, interview with author, 11 July, 2007. The Fulton-Favreau formula was first negotiated in 1964 and debated over the course of 1965. Hatfield's statements likely came in one of these two years. The Fulton-Favreau formula was an amending formula agreed to by the premiers in 1964 in an attempt to repatriate the constitution which ultimately failed. See chapter two for further information. 55 Donald Dennison, interview with author, 11 July 2007.

95 introduced it and passed it that it would have cleared most of the hurdles." Hatfield did not ratify the Meech Lake Accord, and Toole and Dennison found themselves working for Frank McKenna.

The new premier's position on the Accord was ambiguous from the start. While

McKenna had stated in his brief before the Joint Parliamentary committee that he felt there should be changes made to the Accord, he was careful to say that these should

en come only in the form of additions, not subtractions, thereby limiting interference.

Those working in the intergovernmental affairs department found the subtleties of

McKenna's position - and by extension that of the New Brunswick government - difficult to convey to the other provinces. Barry Toole was sent on a tour of the eastern provinces while Dennison went west. Dennison recalled the lack of understanding he encountered, "everyone had the same concern that [New Brunswick should not] mess around with this. Agreement is a rare thing. So, not... 'where are you coming from?'

But, 'why are you doing this?'"58 According to Toole, it was difficult to explain the government's objections. Both he and Dennison had been part of the Meech Lake negotiations since their presence at the Mont Gabriel Conference at which Quebec officials outlined the five proposals that formed the basis of the Accord.59 Just a few months earlier both had participated in the Accord negotiations at Meech Lake and

Ottawa.

56 Barry Toole, interview with author, 5 June 2007. 57 Frank McKenna, "Presentation to the Special Joint Committee on the Constitution," 25 August 1987, folder 5, series 2, UA RG 355, UNBA. 58 Donald Dennison, interview with author, 11 July 2007. In 1989, after his work with the government had ended, Toole presented a brief to the SCNBLA in favour of the Accord. Barry Toole, interview with author, 5 June 2007. For a complete list of conference delegates, see Peter M. Leslie, Rebuilding The Relationship: Quebec And Its Confederation Partners/Une Collaboration Renouvelee: Le Quebec etses Partenaires dans la Confederation (Kingston: Institute of Intergovernmental Relations, Queen's University, 1987), 73-79.

96 The other negotiants, particularly the federal government, did not take

McKenna's early pronouncements on the Meech Lake Accord very seriously.60

Dennison recalls that he urged Ottawa officials to meet with McKenna. "I telephoned

Norman Spector, who was Secretary of Cabinet for Federal-Provincial Relations, and I said Norman, this is serious. We've met with these people, they're not going to say, well, we just didn't realize."61 Spector paid McKenna a visit in November 1987, but the message was far from conciliatory: McKenna could either accept Meech Lake as negotiated or remain isolated, risking national unity in the process.62 Despite McKenna's insistence that changes be made to the Accord, Toole does not think that McKenna was personally enthusiastic about pursuing such a policy. Rather, he feels the Premier did so when faced with pressure from citizens' groups within the province. "I think that Mr.

McKenna really didn't want it to be much of an issue... but because the Acadians and the women were pressuring him, I think that he [continued to pursue] it."63 The federal government had been confronted with most, if not all, of the concerns critics of the

Accord were raising in New Brunswick. Their position remained the one enunciated by

Minister of State for Federal-Provincial Relations, Senator Lowell Murray:

In seeking to resolve Quebec's concerns while meeting the shared objectives of all eleven governments, the Accord is a seamless web and an integrated whole. It represents a finely balanced package - the product of negotiation and compromise. As such, it should not be lightly tampered with.. .If it should come to light that there are egregious errors in the drafting, we would have an

Donald Dennison, interview with author, 11 July 2007. 61 Donald Dennison, interview with author, 5 June 2007. 62 See Chris Morris, "N.B. Told: Take It Or Leave It," Telegraph-Journal, 14 November 1987,2. 63 Barry Toole, interview with author, 5 June 2007.

97 opportunity to address them, while bearing in mind that any change would have to meet the test of unanimity. The federal government recognized that the consensus of the Meech Lake Accord was too fragile to survive the kind of open committee process that the Charter of Rights and

Freedoms had undergone in 1980-81. McKenna, then the only premier demanding the

Accord be re-opened, did not sway the federal government from its position.

Being the sole premier to oppose Meech Lake, which McKenna remained until

late 1988, had its political advantages. Immediately after taking office, McKenna began

receiving hundreds of letters from across Canada in support of his Meech Lake

position.65 Even before the election, letters and telegrams poured into Liberal Party

offices, targeting McKenna as a possible chink in the Meech Lake armour. For example,

Brian Banks wrote to McKenna from Toronto, "With John Turner and Ed Broadbent

both afraid to rock the boat on this one, people like myself have no national voice to

which we can turn. The promise of your sensibility is one of our last remaining hopes."66

Max Wolfe remembers the great expectations that McKenna's electoral victory

engendered: "[When] McKenna won in 1987 after 17 years of Hatfield [there were]

great jubilations. 'At last it's our turn' ... it appeared for once the government was going

to be on our side."0'With the wave of public support flooding into the Premier's Office,

from within New Brunswick and across Canada, McKenna could maintain his Meech-

64 Lowell Murray, "The Constitutional Politics of National Reconciliation," Brief to the Special Joint Committee of the Senate and the House of Commons on the 1987 Constitutional Accord in Michael Behiels, ed, The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord (Ottawa: University of Ottawa Press, 1989), 13-27,14,27. 65 For example, an unofficial tabulation by the Premier's Office for March and April, 1988 of letters to Frank McKenna, showed dramatically more support for his position (changes to the accord are needed) than against it: March, 120 pro, 1 against; April, 98 pro, 0 against. Frank McKenna Operational Records, box 0-88-1, file 2112-1, RS 738, PANB. 66 Brian Banks, letter to Frank McKenna, 5 October 1987, Frank McKenna Operational Records, box 0- 88-2, file 2012-13, RS 738, PANB. 67 Max Wolfe, interview with author, 5 April 2007.

98 sceptic position, regardless of the incredulity from the other first ministers towards his

stance.

Much as McKenna's demands for changes were seen as political grandstanding by his political colleagues, the New Brunswick premier may have underestimated the

resolve of the Quebec and federal governments to see Meech Lake ratified without

amendment. Donald Dennison recalled that in his conversations with intergovernmental

affairs personnel in other governments they indicated that they did not perceive a threat

to the Accord in New Brunswick. McKenna's words were dismissed, according to

Dennison, as election hyperbole: "They campaigned on the promise of improving the

Accord. Nobody took that very seriously. Election platforms are— the public are wisely

sceptical."68 As McKenna indicated to the press at the time of Spector's visit, he was in

no rush to see the matter settled. He stated: "To me it's not a burning item and it's not an

item that has to be decided overnight and that's why I'm resisting advances coming to us

because we're just not prepared to move precipitously on this matter."69 McKenna was

happy to remain ambiguous on the issue, sensing that time was on his side. The longer

New Brunswick held out the stronger its bargaining position would be.

What McKenna might not have realized was that Quebec Premier Robert

Bourassa and Prime Minister Mulroney were in precarious positions. Bourassa had made

it clear, both to his provincial counterparts and the public, that the five proposals first

enunciated at Mont Gabriel by Gil Remillard represented the absolute minimum his

government was prepared to accept. This made the Meech Lake Accord a politically

delicate agreement. Any further compromise by Bourassa would appear as capitulation

Donald Dennison, interview with author, 11 July 2007. 69 Chris Morris, "N.B. Told: Take It Or Leave It," Telegraph-Journal, 14 November 1987,2.

99 in Quebec. It might also risk rupture with the Quebec nationalists in the federal

Progressive Conservative caucus, such as Lucien Bouchard, part of Mulroney's grand carefully crafted coalition of diverse Quebec interests.70 The other premiers' hands were similarly tied. If they allowed for any faults in the Accord, they opened themselves up to the criticism, like that of former Prime Minister Trudeau, that they had given Quebec nationalists everything but sovereignty-association.71 Donald Dennison suggested that in

New Brunswick it was a case of a young government, "full of piss and vinegar," lacking the perspective brought by time in office: "I don't think they realized how high the stakes were... they were coming in as a government that believed you set your objectives high and you achieve them... It's just when you're one of eleven it's difficult."72 McKenna was determined, however, to move ahead with his Meech Lake

Accord promises.

Among McKenna's election promises was that a committee would be struck to consider the Meech Lake Accord and hear testimony from concerned citizens. The committee, to be called the Select Committee of the New Brunswick Legislative

Assembly on the 1987 Constitutional Accord (SCNBLA), was voted into existence on

18 May 1988. The terms of reference, included in the motion, were sparse. The

SCNBLA was "charged with the responsibility of receiving public input on the 1987

Constitutional Accord both from individuals and groups resident in the Province of New

Gil Remillard, when the conditions were first announced, entitled his speech, "Nothing Less than Quebec's Dignity Is at Stake in Future Constitutional Discussions." Monahan, 24. For a discussion of the difficult position of western premiers vis-a-vis Quebec, see Gordon Robertson, A House Divided: Meech Lake, Senate Reform and the Canadian Union (Halifax: The Institute for Research on Public Policy, 1989), chapters four and five. 72 Donald Dennison, interview with author, 11 July 2007. Although no specific promises regarding the Meech Lake Accord appeared in the Liberal Party's election platform, Jane Barry, who was elected as an MLA in the 13 October 1987 election, recalled that McKenna promised to hold public hearings on the Accord. Jane Barry, interview with author, 5 April 2007.

100 Brunswick and if the Committee deems appropriate from persons outside of New

Brunswick who may have expert knowledge...."74 The Committee was composed of seven MLAs and co-chaired by Jane Barry and Edmond Blanchard.75 Barry recalled that

McKenna established the SCNBLA "to meet a commitment he made before the election."76 It is clear from the documentary evidence that the exact form any government committee on the Accord would take was long debated. A memo dated just five days before the SCNBLA was established indicates that matters such as the MLAs to be appointed, whether non-ML As would sit on the committee and whether residents of provinces other than New Brunswick would be allowed to appear were all still undecided.77 As McKenna had promised, he was not willing to rush into decisions concerning the Meech Lake Accord.

The SCNBLA members followed their party leader's example when it came to

Meech Lake and ambiguity. The MLAs on the SCNBLA were careful to avoid any statements to the press about the Accord or the role of their committee beyond the terms of reference. Although much had been made of the democratic principles at stake in the committee hearings, the MLAs on the SCNBLA were quite secretive. The irony of this approach was not lost on the New Brunswick press, which called for a more open process. One columnist quipped, "[i]t would be easier to get Mikhail Gorbachev's home telephone number than it was to pry from MLAs a simple answer to the question of whether former Prime Minister Pierre Trudeau would be invited to state his opposition

74 Frank McKenna, Motion 18, "Constitution, General," Frank McKenna Operational Records, box 0-88-1, file 2,2012-1, PANB. 75 The members of the SCNBLA were as follows: Jane Barry, Saint John West; Edmond Blanchard, Campbellton; Pierette Ringuette-Maltais, Madawaska South; Hubert Seamans, Riverview; Bernard Theriault, Caraquet; Robert Simpson, York North; Eric Allaby, Charlotte-Fundy. 76 Jane Barry, correspondence with author, 29 May 2007. 77 Don Dennison, memo to Frank McKenna et al, 13 May 1988, Department of Intergovernmental and Aboriginal Affairs files, "Meech Lake Strategy," RS 1006, PANB.

101 to the proposed constitutional changes."7 Other than the fact that the SCNBLA attended a "summer school" on the Accord, put on by the law faculties of the University of New

Brunswick and Universite de Moncton, little else was said before the hearings began.

In a rare statement to the Telegraph-Journal, Barry explained that the government was

open to all possibilities when it came to the Accord. "We want the public to know that we are trying to approach this with open minds."80 New Brunswick and the rest of

Canada waited until hearings got under way several months later.

Six out of eleven governments held public hearings into the Meech Lake Accord.

The first to do so was Quebec. The National Assembly convened a committee which

held limited hearings in May 1987, between the initial Meech Lake meeting and the

Langevin Block first ministers' conference at which the legal details of the Accord were

agreed upon.81 The federal government struck the Special Joint Committee of the Senate

and the House of Commons on the 1987 Constitutional Accord, which held public

hearings in the summer of 1987. The hearings were roundly criticized by opponents of

Meech Lake. They pointed out that, unlike the experience with the joint committee that

examined the Charter of Rights and Freedoms in 1980-81, little notice was given of the

1987 hearings. Citizens' groups who appeared also protested the fact that the Joint

Parliamentary Committee did not travel and that the hearings were held in August, when

many Canadians take their summer vacations. Some complained that this was indicative

78 Don Hoyt, "Accord Committee should be operating in the open," Telegraph-Journal, 18 August 1988, 4. 79 Don Hoyt, "Accord Committee should be operating in the open," Telegraph-Journal, 18 August 1988, 4. Don Richardson, "MLA's committee has 'an open mind' on Meech Lake deal," Telegraph-Journal, 18 June 1988. 81 Max Nemni, "Forum: Canada in Crisis and the Destructive Power of Myth," Queen's Quarterly, Vol. 99, Iss. 1 (Spring, 1992): 222-239,236. Kathy L. Brock, A Mandate Fulfilled: Constitutional Reform and the Manitoba Task Force on Meech Lake (Winnipeg: University of Manitoba Outreach Fund, 1990), 60.

102 of an attempt by the government to block public participation. Given Lowell Murray's statement that the Meech Lake Accord was a "seamless web," to be modified only in the discovery of the most "egregious errors in... drafting," it seemed to many who participated in the hearings that their concerns were falling upon deaf ears. Moreover, the leaders of all three political parties represented in the House of Commons supported the Meech Lake Accord.

When the Joint Parliamentary committee's report was issued, the sense of exclusion among citizens' groups was reinforced. Beverley Baines, a law professor at

Queen's University, who appeared before the Joint Parliamentary Committee as legal counsel for the CACSW, later remarked, "[w]hen I compared the Minutes and the

Report [of the Joint Committee], it became obvious that the [committee members]... had not heard - and that is the politest way of phrasing it - the testimony of the women who appeared before them to give evidence on this issue."83 The federal hearings left few of those concerned about the Accord satisfied. Prince Edward Island also held four days of hearings, receiving testimony from thirty groups and individuals. The Prince Edward

Island committee relied heavily on evidence from experts invited by the government from Ontario.84 Bryan Schwartz, a law professor at the University of Manitoba and a

Behiels, 14, 27. Murray was the first witness to appear before the Joint Parliamentary Committee. 83 Beverley Baines, "Brief to the Select Committee on Constitutional Reform, 1987 Constitutional Accord," Department of Intergovernmental and Aboriginal Affairs files, "General Research," RS 1006, PANB. There is virtually no mention of the Prince Edward Island Committee Hearings in the academic and journalistic writing on Meech Lake. The Prince Edward Island Committee recommended the Accord be adopted without amendment. For a brief discussion of the Prince Edward Island committee, see Brock, 60- 61.

103 member of the Manitoba delegation to the first ministers' conferences where Meech was negotiated, dismissed the Prince Edward Island hearings as "farcical."85

Only three provinces held substantial hearings into the Meech Lake Accord following the Langevin Block meeting on 2 June 1987: Ontario, Manitoba and New

Brunswick. As the Liberal government of David Peterson in Ontario had committed to the Accord and acknowledged that it could not be re-negotiated, the hearings lacked legitimacy in the eyes of many who wanted changes to Meech Lake. The Ontario committee made a number of recommendations for the next round of constitutional talks, such as conferences on Aboriginal self-government. Notwithstanding matters for future discussion, its report urged that the Accord be adopted without amendment, a necessity if the country was to move forward with its constitutional agenda. The

Manitoba hearings, held in April and early May 1989, have been characterized as the most democratic by critics of the process behind the Meech Lake Accord.87 Unlike the

New Brunswick hearings, the committee, which was called the Manitoba Task Force on

Meech Lake, only allowed residents of Manitoba to appear at hearings and travelled around the province. The Task Force made extensive recommendations that entailed renegotiating the terms of the Accord, including the distinct society clause, proposing it be part of a more extensive "Canada Clause."88 Despite its provincial focus, the report of the Manitoba Task Force embodied the concerns of citizens' groups across Canada, such as the NBAHCC.

Bryan Schwartz, statement before the SCNBLA (video recording), 1 February 1989,019, MC 1750, PANB. 86Ontario, Report of the Select Committee on Constitutional Reform, 1987 Constitutional Accord (Toronto: Queen's Park, 1988), 35. 87 Brock, 57, 59. 88 Brock, 102-105.

104 The much anticipated New Brunswick hearings finally got under way in late

1988. During September and October the SCNBLA heard fromsi x invited expert witnesses: civil rights lawyer Mary Eberts, law professors Michel Bastarache, Peter

Hogg and John Whyte, as well as Senator Gerald Beaudoin and retired Senator and

constitutional theorist Eugene Forsey. Three were for ratifying the Accord and three

were against it in its present from. The SCNBLA suspended hearings until after the

federal election on 21 November 1988, as the government was concerned it might be

seen as an attempt to interfere with the outcome.89 When the SCNBLA returned to work

in January 1989 the long-awaited opportunity had finally arrived for individuals and

citizens' groups, as well as a host of other organizations, to express their views on the

Meech Lake Accord. The NBAHCC felt that a level of participation equal to that which

had shaped the Charter of Rights and Freedoms less than a decade before ought to be

the minimum level of public consultation. With the SCNBLA, the time had finally come

for Accord opponents to take what they saw as their rightful place in the constitution-

making process.

Two separate briefs were presented by members of the NBAHCC. Gayle

MacDonald and C. Anne Crocker presented the official Committee brief on 15 February

1989, the eighth anniversary of the "taking of twenty-eight" conference on Parliament

hill. It was Crocker and MacDonald who were largely responsible for authoring the

brief. As with many NBAHCC actions, authorship tended to be a collective process.

Crocker recalled, "The brief was pretty important to us... it was Gayle and I who did

most of the work on that, at my kitchen table, mostly on a Sunday afternoon. I did a

89 Francis McGuire, memo to Adlea Landry and Frank McKenna, 14 January 1988, "Re. Meech Lake Strategy - Timing of Hearings," Department of Intergovernmental and Aboriginal Affairs files, "Constitution, General," RS 1006, PANB.

105 rough draft, and then Gayle did some more and then we sort of put it together."

Although it emerged out of general discussions within the Committee and it was passed between members, there was no formal process for approving the document. The brief dealt with the following nine issues which touched on every aspect of the Meech Lake

Accord.91

The first was linguistic duality. The NBAHCC worried that Francophone communities outside Quebec could be placed at risk. The Accord declared it the duty of

Parliament and every province but Quebec to protect linguistic rights, but not necessarily to promote them. In addition, as MacDonald stated during the presentation of the brief,

"[b]y conservative estimates, by the year 2000 nearly forty per cent of Canadian will be of ethnic origin other than either British or French in terms of languages...."

Entrenching a two-nation conception of Canada, as the distinct society clause did, made little sense to the NBAHCC given the growing cultural mosaic that is contemporary

Canada.

Second, the Committee's brief dealt with individual and equality rights under the

Charter of Rights and Freedoms. Many opponents of Meech Lake, particularly those who had won constitutional protection in 1981-82, such as women, were concerned that the distinct society clause would adversely affect their rights. The concern came largely from the additional protection afforded Aboriginal peoples and multicultural groups in

Section 16 of the Accord. The fear that the combination of the two sections created a hierarchy of rights was summed up in the legal principle of expressio unius exclusio

90 C. Anne Crocker, interview with author, 22 March 2007. 1 For a detailed explanation of the specific clauses to which the NBAHCC brief refers, see chapter one. 92 Gayle MacDonald, presentation to the SCNBLA (video recording), 15 February 1989,043, MC 1750, PANB.

106 alterius (the expression of one indicates the deliberate exclusion of others). If other

Charter rights were meant to be unaffected by the Accord, the argument went, then they would have been included in the text, or so a judge might reason.

The third topic addressed by the NBAHCC was the Accord's immigration provision. They argued that the withdrawal of reception services by the federal government might, "[encourage] immigrants to identify with a particular province rather than with Canada... ."94 Fourth were the provisions for the provincialization of Supreme

Court and Senate Appointments. The NBAHCC argued that giving the power to appoint justices and senators might politicize the bench and turn the Senate into a regionally fractured, divisive body.95

Fifth, concerns over the North and Aboriginal peoples were highlighted by the

Committee. The governments of the Northwest Territories and Yukon had both objected to their exclusion from the negotiations and the new requirement that the creation of provinces would require the consent of all the existing provinces, as opposed to the seven required before.96 Apart from the fact that most residents in the two territories are

Aboriginal Canadians, there was also a wide-spread feeling that Aboriginal concerns were not taken seriously by the provincial and federal governments. There had been

Meech Lake Action Bulletin, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 9, series 1, UA RG 355, UNBA. 94 NBAHCC, "A Brief Opposing the Meech Lake Accord," 4-5, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. NBAHCC, "A Brief Opposing the Meech Lake Accord," 5, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. The two territories, while exercising much of the authority of provincial governments, rely on the devolution of authority as a matter of federal policy. The approval of territorial governments is not required for amendment of the constitution and they are generally represented by the federal government in constitutional negotiation. The two territorial governments went so far as to challenge the federal government's right to negotiate constitutional changes affecting the territories without consultation. The lower courts found against the territories and the Supreme Court refused to hear their appeal. Edison Stewart, "Court Rejects Challenge: Another Obstacle Gone For Meech Lake Accord," Amherst Daily News, 3 June 1988,11. three constitutional conferences on Aboriginal self-government between repatriation and

1987 with no resolution. A few months after the final conference, the first ministers were able to agree to Quebec's conditions in the course of a single day of negotiation.

This struck many as indicative of a lack of political will to deal with Aboriginal

Canadians' issues.

The sixth topic dealt with in the NBAHCC's brief was the opting out provisions

of the Accord, which met Quebec's condition of a limitation on the federal

government's spending power. This was consistently a concern of women's groups who

felt that potential policy initiatives of great value to women might be made impossible,

such as a national daycare programme. The NBAHCC was particularly concerned

because, they argued, those provinces like New Brunswick that were "disadvantaged by

higher production and transportation costs and... a smaller tax base" might never be able

to offer levels of service comparable with the richer provinces without national shared-

cost programmes.

Seventh, the NBAHCC felt that the addition of several areas of potential

constitutional amendment to the unanimity category from the seven provinces/fifty per

cent category would place a straightjacket on constitutional change, even allowing a

single province to highjack constitutional discussion for its own interests. "The

requirement for unanimity will serve to protect the status quo... It will also allow for the

NBAHCC, "A Brief Opposing the Meech Lake Accord," 6-7, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. 98 NBAHCC, "A Brief Opposing the Meech Lake Accord," 8, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA.

108 possibility that unrelated political and economic positions and concerns of a particular province will control constitutional change."99

The eighth subject addressed by the NBAHCC's brief was executive federalism.

The Committee argued that the provision for annual first ministers' conferences on the constitution, presumably to be conducted as the Meech Lake and Langevin Block meetings had been, would "[create] a third level of government which is significantly removed from electoral accountability."100 Closely linked to this concern about the future of constitution-making was the final issue taken up by the NBAHCC: the process through which the Accord was negotiated. MacDonald, responding to a question from

SCNBLA member Eric Allaby, noted the enormous problem of the process by which the

Accord was negotiated: "The significant flaw is the lack of consultation with people...

The process and the lack of input... we find insulting to Canadians."101 Faced with all these problems with the Meech Lake Accord, Crocker declared before the SCNBLA, "I don't think Canadians are going to sit still and let it happen."102

The NBAHCC's presentation was one of the broadest and best prepared that the

SCNBLA heard. As Co-Chair Edmond Blanchard remarked, "It is quite obvious you did your homework."103 Although Max Wolfe was very much a core member of the

NBAHCC, he chose to present his own brief on 2 February. In his presentation, Wolfe spent most of his time on his concerns over the process of the Accord and executive

99 NBAHCC, "A Brief Opposing the Meech Lake Accord," 9, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. 100 NBAHCC, "A Brief Opposing the Meech Lake Accord," 9, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. 101 Gayle MacDonald, presentation to the SCNBLA (video recording), 15 February 1989,043, MC 1750, PANB. 102 C. Anne Crocker, presentation to the SCNBLA (video recording), 15 February 1989, 043, MC 1750, PANB. 103 Edmond Blanchard, remarks at the SCNBLA hearings (video recording), 15 February 1989, 018, MC 1750, PANB.

109 federalism, which he labelled "a provincial power grab." The only major difference was the attention Wolfe gave to the Free Trade Agreement during his presentation.

Wolfe remarked, "It's ironic that the Free Trade [Agreement] will require a strong central government, where the effect of Meech Lake will of course be the exact opposite... The combination of Meech Lake and Free Trade—I shudder to think what our children will inherit."105 The nine items in the Committee's main brief, discussed above, and the concerns Wolfe raised in his presentation encapsulated the shared objections of the NBAHCC members to the Meech Lake Accord.

A wide variety of groups and individuals appeared before the SCNBLA.106 The vast majority had some objection to the Accord as negotiated, although virtually none

(including the NBAHCC) disagreed with the objective behind Meech Lake - the formal

inclusion of Quebec in the repatriation settlement of 1981-82. In total, sixty-five groups

and forty individuals presented briefs to the SCNBLA; a further thirty-eight groups and thirty-six individuals submitted briefs but did not appear. There was roughly equal representation of English and French interest groups. Approximately ninety-seven per

cent of the submissions were opposed to the ratification of the Accord without

amendment and/or supplementary protection for Francophones outside Quebec.107 Many

of the issues raised by the NBAHCC were also referred to in the presentation of other

104 Max Wolfe, presentation to the SCNBLA (video recording), 9 February 1989, 037, MC 1750, PANB. 105 Max Wolfe, presentation to the SCNBLA (video recording), 9 February 1989, 037, MC 1750, PANB. See appendix 'A' for a complete list of individuals and groups who appeared before or submitted briefs to the SCNBLA. Tabulation of Anglophone/Francophone division and percentage of presentations opposing the Accord from David Terence Pye, "Interest Group Articulation in Public Policy Formation: A Study of New Brunswick's Meech Lake Hearings, January-February 1989" (MA thesis, Fredericton: University of New Brunswick, 1990), 93-94. Pye has conducted an extensive analysis of the SCNBLA hearings as an example of interest group articulation and its effect on government policy. The tabulation of groups and individuals who appeared and/or submitted briefs to the Committee is my own, based on the names in appendix 'A'.

110 individuals or organizations. When asked about the impact of the NBAHCC by

SCNBLA Co-Chair Jane Barry, Crocker responded, "the Committee [tried to] expand public awareness of Meech Lake, give people as much... understandable information as we possibly could and to mobilize them to act in some fashion... You have probably heard from the majority of people who attended [our] conference."108 Not every subject was covered by the NBAHCC s brief however.

There were two issues that the Committee did not discuss which were of special importance to New Brunswick. The first was the provision in the Accord calling for fisheries jurisdiction to appear in perpetuity on the agenda at first ministers' conferences on the constitution. Crocker recalls that the reason for this was simple, "we didn't have particular expertise in terms of fisheries."109 MacDonald concurred, adding, "fisheries had a strong union that was able to speak for [fishers]."110 Second, and largely the focus of Francophone groups, was the possible entrenchment of "Bill 88," formally the Act

Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick.

Virtually every Francophone organization or individual endorsed the protection of French-language rights in the province by entrenching the principles of Bill 88 in the constitution. The question for Francophone groups hinged on whether they could accept the Meech Lake Accord before the gains of Bill 88 were protected. When asked about entrenching Bill 88 by SCNBLA member Pierrette Ringuette-Maltais, Crocker responded, "[w]e haven't studied what the implications of [the entrenchment of Bill 88] would be. I don't think... that we would have any objections to that. I don't think that is

108 C. Anne Crocker, presentation to the SCNBLA (video recording), 15 February 1989,043, MC 1750, PANB. 109 C. Anne Crocker, interview with author, 22 March 2007. 110 Gayle MacDonald, interview with author, 11 June 2007.

Ill a solution to Meech Lake... there is nothing to prevent us if we get the consent of

Parliament and the Legislative Assembly of New Brunswick. It's as simple as that, that's all it takes."111 Crocker now feels that the question of Bill 88 and McKenna's parallel accord - which will be explored in the next chapter - were little more than attempts to pacify New Brunswickers, drawing their attention away from the more serious flaws with Meech Lake.112 MacDonald suggested that Francophones, like New Brunswick fishers, were well represented: "[t]he Acadians were very organized on their own... It was certainly not because we wanted to alienate Francophones."113 Although the

NBAHCC did not have any of the anti-Francophone leanings of some Meech Lake opponents, the group did not focus on these two New Brunswick issues, both of which were important to the province's Francophones. Instead, they chose to focus on what they saw as "national issues."114

After their presentation, the members of the NBAHCC regarded the SCNBLA hearings very favourably. The overwhelming majority of presentations had cautioned the government against ratifying the Accord. If McKenna needed further evidence of a mandate to re-negotiate the Meech Lake Accord he could certainly point to the

SCNBLA's hearings. Virtually all of those who made presentations to the SCNBLA from outside the province indicated that they felt New Brunswick, its hearings and premier were an example to the rest of the country. University of Manitoba law professor Bryan Schwartz remarked, "I think New Brunswick has a big opportunity and

I hope you will not forget that... Our Premier should be doing what your Premier is

111 C. Anne Crocker, presentation to the SCNBLA (video recording), 15 February 1989,043, MC 1750, PANB. 112 C. Anne Crocker, interview with author, 22 March 2007. 113 Gayle MacDonald, interview with author, 11 June 2007. 114 C. Anne Crocker, interview with author, 22 March 2007.

112 doing."115 MacDonald recalls how positively she felt the NBAHCC was received, "What we found was that people on the Committee were very, very interested in hearing from people... As I remember I really did feel like we were being listened to. The hearings phase of the SCNBLA was judged to have been another success for the

NBAHCC.

To conclude, in August 1987 the NBAHCC formed to oppose the ratification of the Meech Lake Accord by the government of New Brunswick. It followed the pattern of earlier ad hoc organizations. The fluid structure allowed ad hocers to use their personal connections to other organizations in aid of information sharing and fundraising. After the New Brunswick election, it became apparent that opponents of the

Accord in New Brunswick had a unique opportunity to either stop the Accord or force a re-negotiation of its terms. The NBAHCC acted as the information and organizational hub for an informal provincial network of Meech Lake opponents. At the same time, it served as a key part of a national network opposing the Accord. The peak of the committee's information sharing activities was a well-attended conference in Moncton on the Accord which drew national media attention. Following the conference, the

NBAHCC s attention was largely focused on its appearance before the SCNBLA.

Hopes were high among the Committee members and other citizens' groups that the New Brunswick hearings would provide the chance for Canadians across the country to participate in constitution-making. At the time, the SCNBLA appeared to many as the last, best chance to stop Meech Lake. In keeping with the government's vague position on the Accord, it was not until a year after the election of the McKenna government that

115 Bryan Schwartz, statement before the SCNBLA (video recording), 1 February 1989,019, MC 1750, PANB. 116 Gayle MacDonald, interview with authory, 11 June 2007.

113 the SCNBLA began conducting its hearings. Despite the delays, citizens' groups in opposition to the Accord were positive about the hearings process and the McKenna government's intentions. As the NBAHCC would discover, however, the SCNBLA would not heed their advice on Meech Lake. Moreover, despite its close connections with the Liberal government, the Committee would be forced to reappraise its view of

Frank McKenna as an ally in the anti-Meech crusade.

114 Chapter 5

"McKenna has really sold us down the river."

During the first two years of its campaign against the Meech Lake Accord, the

NBAHCC was on the offensive. It organized information meetings, held a well- publicized conference in Moncton and presented a detailed brief to the SCNBLA. In the final sixteen months preceding the Accord's ratification deadline, however, the

Committee members found themselves reacting to a rapidly unfolding series of events at the elite political level. This chapter follows the NBAHCC s actions from the publication of the SCNBLA's report to the death of the Meech Lake Accord. It also focuses on how McKenna, once the Committee's ally in the fight against Meech Lake, became an opponent, prompting C. Anne Crocker to write to Max Wolfe at one point,

"McKenna has really sold us down the river."1 This chapter also includes a discussion of the effects of the Accord's failure with particular reference to the linguistic politics of

New Brunswick and the retreat from constitution-making in Canada.

In June 1989 the NBAHCC began a mass-mailing campaign directed at bolstering New Brunswick Premier Frank McKenna in his apparent opposition to the

Meech Lake Accord. The Committee printed postcards which declared, "Flamingoes all agree: Beach Meech." The postcards were pre-addressed to McKenna's office at the

Legislative Assembly building in Fredericton. Hundreds of them arrived through June

1 C. Anne Crocker, fax to Max Wolfe, 28 March 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 2, series 1, UNBA.

115 and July 1989.2 The post cards were mailed from around the province, with a concentration from the Fredericton area. Many of them were anonymous, although the

NB AHCC members all signed their names. Most had simple messages on the back:

"Please don't let us down," read one anonymous card posted from Fredericton. The back of every postcard also noted that "[t]he Phantom Flamingo and Friends hate the Meech

Lake Accord." The front of the post cards featured two images, one of plastic flamingos and the other a flock of the real thing.

The flamingo-themed postcards were in reference to a light-hearted publicity stunt by the NBAHCC. Very early on the morning of 30 June 1989 fifty plastic flamingos were placed on the front lawn at Frank McKenna's house on Woodstock Road in Fredericton. Forty-nine of the birds were adorned with Liberal-red ties, similar to those often sported by Frank McKenna.3 One wore a blue tie to symbolize Manitoba's

Progressive Conservative premier Gary Filmon, who had begun to vacillate on whether his province would ratify the Accord.4 In addition to the birds there were two large signs reading "Beach Meech" and "Thanks Frank." The flamingo stunt was a success, the press deciding that the mysterious overnight appearance of fifty well-dressed plastic flamingos on the Premier's lawn made for an entertaining news item.5 The placement of the birds was timed so that photos of the flock appeared in the press on Canada Day.

NBAHCC member Gayle MacDonald recalls that the woman erecting the fowls was approached by the police, "the cops came along and asked her what she was doing. They

2 Frank McKenna Operational Records, Box 0-89-1,2012-13, RS 738, PANB. Gayle MacDonald, interview with author, 11 June 2007. 4 Gayle MacDonald, interview with author, 19 April 2007. 5 See photo in Telegraph-Journal, 1 July 1989.

116 thought it was funny and she went for coffee with [them]. Willi Evans Wolfe remembered that the principal reasons behind the flamingo stunt were to remind

McKenna of anti-Meech Lake sentiment and also to keep the spotlight on McKenna's ever-ambiguous pronouncements. She recalls, "[McKenna] was beginning to sound like he was about to go along with [Meech Lake] and we said let's just do something that draws attention to it."

The flamingo stunt and the post card campaign were meant to bolster McKenna's anti-Meech Lake sentiment. By mid-1989 many in the NBAHCC felt that McKenna was waffling in his opposition to the Accord. From his election in 1987 through 1989,

McKenna was consistent in his ambiguous position on the Meech Lake Accord. From the start he had argued that, while changes were needed, they should be made through additions, not subtractions.8 He argued that equality rights in the Charter of Rights and

Freedoms should be better insulated from the potential effects of the distinct society clause, but he did not put forward any proposed new wording. On one point McKenna was unequivocal: neither he nor the New Brunswick government would be rushed into making a decision about the Accord.

MacDonald articulates the growing frustration the Committee members felt with

McKenna: "he was infuriating because he would just waffle. He wouldn't come down one side [or] the other."9 Notwithstanding the Premier's ambiguity, the Committee tended to see him as devoted to the same "Trudeau-Liberal" ideals as they were. These

Gayle MacDonald, interview with author, 11 June 2007. Placing flamingos on someone's lawn in recognition of their birthday was common at the time. The NBAHCC contracted a local firm that specialized in flamingo placement. Willi Evans Wolfe, interview with author, 5 April 2007. 8 Frank McKenna, "Presentation to the Special Joint Committee on the Constitution," 25 August 1987, folder 5, series 2, UA RG 355, UNBA. 9 Gayle MacDonald, interview with author, 11 June 2007.

117 included a pan-Canadian/bilingual view of confederation, as opposed to the territorially- based conception of two nations (deux nations) to which Meech Lake adhered. It has been wryly noted of McKenna that the one issue on which he took a clear stand in his career as Premier of New Brunswick was the Meech Lake Accord, and he managed to take that stand on both sides of the issue.10 Over the course of 1989, however, NBAHCC members were forced to re-evaluate their perception of McKenna.

The Committee's relationship with the Premier and the New Brunswick government changed after their appearance before the SCNBLA. As the summer of 1989 wore on the flow of information from the Premier's Office slowed to a trickle. Gayle

MacDonald recalls the shift from the NBAHCC's perspective: "It was the way he started to politely change what he was saying in public... we weren't getting information as easily anymore. There was just this gradual sort of shut down."11 As there are no formal records of the NBAHCC s receipt of information from inside the government it is impossible to know when and to what extent they were shut out. Nevertheless, the core members interviewed agree that over the summer of 1989 the government became less generous with its information.

McKenna's ambiguity led to political rumours, especially as the public sensed the Premier might be warming up to the Accord. The focus of speculation tended to be what action the federal government might take to induce the Government of New

Brunswick into supporting Meech Lake. Apart from the Accord, there was no shortage of issues that served as "irritants" in the province's relationship with the federal government. When it came to such rumours, the most common theory was that Prime

10 With thanks to Donald Wright. Gayle MacDonald, interview with author, 11 June 2007.

118 Minister Brian Mulroney might entice McKenna with promises of funding for improvements to the Trans-Canada Highway.12 In a similar episode, many wondered aloud about the new Liberal government's declaration of support for the Free Trade

Agreement between Canada and the United States. Around the same time, a New

Brunswick shipbuilding firm was awarded a Navy contract for the construction of new frigates without the usual tendering process.

Wolfe, in his appearance before the SCNBLA, summarized the fear that

McKenna might be bought: "what I'm really afraid of is that our own premier will sell this province, this country, for a Trans-Canada highway or for a Lepreau two... when the time comes for the province to put up or shut up."14 There is little evidence that any such agreement was ever made. The federal and provincial governments squabble and make deals over funding constantly - whether or not a constitutional amendment is in the offing. It is the case, however, that New Brunswick civil servants considered it a possibility, as indicated by Department of Intergovernmental Affairs memoranda.15 The rumours that McKenna might be bought that circulated throughout 1989 indicate the

McKenna provided a long list of such "irritants" in a memo to the Prime Minister. He wanted action on the following: funding for the expansion of Moncton Airport; restoration of cuts made to unemployment insurance; Trans-Canada Highway improvements funding and permission for the road to cross Canadian Forces Base Gagetown; federal funding for a second reactor at Point Lepreau nuclear generating station; federal commitment to build a fixed link to Prince Edward Island; the restoration of cuts to the Atlantic Canada Opportunities Agency budget; reconsideration of federal authorization of a Cavendish French fry plant on Prince Edward Island that might endanger New Brunswick jobs; the closure of Canadian Forces Base Chatham and the Tracadie Range; the provision of income tax points to fund a new kindergarten system; and extension of the natural gas pipeline network from Quebec City into New Brunswick. Frank McKenna, letter to Brian Mulroney, 19 January 1990, Frank McKenna Operational Records, box 0-90- 131, file 2050-1, RS 738, PANB. 13 Phillip Lee, Frank: The Life and Politics of Frank McKenna, Fredericton: Goose Lane Editions, 2001, 149. See also Globe and Mail, 20 November 1987. 14 Max Wolfe, presentation to the SCNBLA (video recording), 9 February 1989, 037, MC 1750, PANB. "It might also influence positively or negatively how the Tories deal with other issues which New Brunswick will want to put on the national agenda (i.e., the Trans Canada Highway, Regional Development, Energy...)." Francis McGuire, memo to Aldea Landry and Frank McKenna, 14 January 1988, "Re. Meech Lake Strategy," Department of Intergovernmental and Aboriginal Affairs files, "Constitution, General," RS 1006, PANB. Francis McGuire served as Deputy Minister of Intergovernmental Affairs for a brief time between Barry Toole and Donald Dennison.

119 uncertainty felt by many Meech Lake opponents over the Premier's commitment. It is also an indication of how the dialogue over Meech Lake was becoming increasingly polarized and emotional through 1989 and 1990.

In examining the Meech Lake debate, it is tempting to categorize groups as either pro- or anti-Meech Lake, but those who both supported and opposed the agreement did so for wide-ranging reasons. For example, Frank McKenna's position was never for the

Accord as negotiated in April and June, 1987, although he later came to accept it pending consideration of his own agenda of additional issues. The questions raised by the Accord were not simple black-or-white issues, but the emotionally charged debate led to an artificial dichotomy in the latter months of the ratification period.17 Political scientist C.E.S. Franks offers the following four observations about the debate:

First, there was a simplification and exaggeration of the major symbols... Second, the symbols became polarized into incompatible oppositions... Third, opinion increasingly clustered around these simplified, polarized symbols... Fourth, there was an intensification of feeling towards these symbols. The symbols for citizens' groups such as the NBAHCC were the elements of the constitutional status quo established with the repatriation round, namely the protection that various segments of Canadian society had won through the entrenchment of the

Charter of Rights and Freedoms. Politically, this meant aspects of a "Trudeau-Liberal

For examples of this concern in the New Brunswick press, see Don Hoyt, "Manitoba may take McKenna off Meech Lake hook," Telegraph-Journal, 28 November 1988,4; "Road can't be linked to Meech" (editorial), Telegraph-Journal, 12 May 1989. For example, Deborah Coyne, who worked as constitutional advisor to Newfoundland Premier Clyde Wells, writes that she suspected McKenna has "joined the pro-Meech brigade" or of the "reasonable assumption that McKenna had left the anti-Meech camp," all as early as the publication of the SCNBLA Report. The New Brunswick premier's position remained quite ambiguous through this period. Deborah Coyne, Roll of the Dice: Working with Clyde Wells during the Meech Lake Negotiations (Toronto: James Lorimer Co., 1992), 19, 62, 71. 18 C.E.S. Franks, The Myths and Symbols of Constitutional Debate in Canada, (Kingston: Institute of Intergovernmental Affairs, Queen's University, 1993), 58-59. vision," including official bilingualism and protection for the individual's right to minority language education. From a feminist perspective, the "taking of twenty-eight" episode gave women's groups a proprietary interest in the constitution. While the

NB AHCC and others articulated concerns over what might happen to sex equality rights

(as guaranteed in sections 15 and 28 of the Charter) under the Accord, it was not the

specifics or legal potentialities which came to dominate public discourse. It was the

symbolic claim that the Charter of Rights and Freedoms was under attack. As Crocker remarked in a speech to the Gagetown Rotary Club, "[ejquality is now recognized as a

fundamental value in Canadian society. Yet the very first substantive clause of the

Meech Lake Accord.. .promotes the concept of linguistic duality as a fundamental

characteristic of Canada. Therefore, what the Accord has done is to create a hierarchy of rights, where it would appear that linguistic and cultural rights take precedence over individual rights."19 In the NBAHCC's brief to the SCNBLA, they noted, "since the

1985 proclamation of section 15, Canada has been hailed as having the finest document on equality rights... This model is now in jeopardy."20

The Accord had a communitarian (as opposed to individualistic) thrust, particularly the distinct society clause. It is impossible to say whether the Supreme Court would have interpreted the provisions of the Accord in such a manner as to limit individual rights. What is clear, however, is that citizens' groups who had fought for and achieved an entrenched bill of rights rooted in the liberal tradition of individual rights saw the constitutional order challenged. The debate became focused on the overall threat

19 C. Anne Crocker, "Address to the Gagetown Rotary," 4, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 4, series 3, UA RG 355, UNBA. 20 NBAHCC, "A Brief Opposing the Meech Lake Accord," 3-4, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA.

121 to a symbol of the constitutional order, the Charter, as opposed to a technical discussion of the potential effects of the Accord.

The same was true of those who supported Meech Lake. The Accord was possible because of the desire to move the constitutional agenda forward vis-a-vis

Quebec by Prime Minister Mulroney. During the 1984 election campaign that brought

Mulroney to power, he promised to work for an agreement that would allow Quebec to

accept the constitutional settlement of 1981, "with honour and enthusiasm."21 The

concept of honour became an important part of the Prime Minister's argument for the

necessity of the Accord, as he and the federal government used increasingly emotional

terms such as "humiliation," "rejection," and "isolation."22 If the Accord failed, then

Quebec would be insulted once more, as many claimed it had been when the province

was "excluded" from the repatriation settlement in 1981. The argument was a powerful

one inside Quebec, raising the stakes for the provincial and federal governments. C.E.S.

Franks links the argument from Quebec's honour to the powerful cultural myth of la

survivance, the struggle of les Quebecois to preserve their language and culture in the

midst of the Anglophone sea that is North America.23 If the Meech Lake Accord failed

and its five conditions were rebuked, Quebec would be humiliated, another episode in a

history of injustice (mythical or factual) visited upon the Quebecois by Anglophone

Canada.

21 Mulroney made the remark in a campaign speech at Sept-Iles, Quebec, on 6 August 1984. Patrick J. Monohan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991), 41. Raymond Breton, Why Meech Failed: Lessons for Canadian Constitutionmaking (Toronto: CD. Howe Institute, 1992), 16. 23 Franks, 17. Survival is a powerful cultural myth in Canada. Franks notes that a version of the survival myth also motivates political action in non-Francophone Canada. While

Francophone Canadians have at times seen the British, Americans or Anglophone

Canadians as the source of their oppression, "English Canadians have a peculiar and abiding inability to see themselves as oppressors of French Canada."25 The difficulty of expressing the cultural differences between Anglophone Canada and the United States focuses attention on whichever symbols make Canada distinct. The need to protect

Anglophone-Canadian culture from continentalist pressure was particularly strong at the time of the Meech Lake debate given concerns over the implementation of the Free

Trade Agreement. Those concerns helped to foment opposition to the federal

government that negotiated the agreement and, by extension, that same government's

attempt at constitutional realignment. Worried Anglophone-Canadians also seized upon

the Charter of Rights and Freedoms as a symbolic representation of Canada vis-a-vis the

United States.26 In essence, this captured the lack of understanding between Quebec and

the rest of Canada when it came to the constitution and exaggerated those differences.

The Charter enshrined individual rights, which were at odds with the expectation of

"The myths of victimization and survival are deeply entrenched in Canadian culture and politics, both English and French." Franks, 15. 25 Franks, 13. Whether or not Anglophone Canadians are guilty of oppressing les Quebecois is not the issue, because the power of the survival myth outweighs historical argument to the contrary. 26 Recall the NBAHCC's claim, quoted above in Crocker's speech to the Gagetown Rotary club, of the unique nature of the Charter. That the Charter of Rights and Freedoms was seized upon as a symbol of Canadian distinction is somewhat ironic. The Charter articulates a liberal constitutional vision of a sovereign people able to check their government. The first country to have such a constitution was the United States - the nation from which Canadian nationalists wish to differentiate their country - and is far removed from the traditional conception of Canadian government based on the British model of government. In the British system Parliament is supreme and cannot be circumscribed. The liberal vision of the Canadian constitution stands in stark contrast to pve-Charter notions of Canada, essentially defined by its British conservatism. The shift from a British- to American-style constitutionalism predates the Charter of Rights and Freedoms however. For an early discussion of this shift see George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Ottawa: Carleton University Press, 1997). For a discussion of liberal versus communitarian/conservative tension within the constitution and its effect on the Meech Lake Accord debate, see Frederick Singer (MA/LLB thesis, Queen's University, 1992). collective rights on the part of many Quebecois. These collective rights were enshrined in the Meech Lake Accord.27

The strain placed upon the already fragile nature of Anglophone-Canadian identity during the Meech Lake episode led some Anglophone Canadians to conclude that Francophone Canadians constituted a threat to their survival. The extreme manifestation of this fear was outright anti-Quebec/Francophone sentiment, the most radical groups claiming that the Accord was part of a sinister plot for the demise of

Anglo-Canada. The NBAHCC did not subscribe to theories of sinister French domination, nor did they employ the "threat" of Francophone Canada as a rhetorical device. Regardless, all anti-Meech groups were tarred with the same brush from time to time. While the NBAHCC never dabbled in anti-Francophone sentiment, the members of the Committee, in their appearances before the SCNBLA and in research interviews, were anxious to highlight this fact.28

This underscores the difficulty of categorizing participants in the Meech Lake debate into a simple pro-/anti-Accord dichotomy. It also draws attention to the way

Meech proponents simplified the discourse into a question of honouring a political commitment made to Quebec versus insulting the province for anti-Francophone reasons. Stephen E. Patterson, a member of the Canadian Coalition on the Constitution, noted that the media sometimes tried to label all Meech opponents as anti-French. He recalls, "[t]he thing I liked least was being manipulated by some reporters who you realized... just wanted to use you as a kind of stereotype of the anti-Meech movement.

27 Breton, 17. 28 C. Anne Crocker, interview with author, 22 March 2007; Gayle MacDonald, interview with author, 19 April 2007; Max Wolfe, presentation to the SCNBLA (video recording), 9 February 1989,037, MC 1750 PANB.

124 Pretending it was anti-French."29 There were many who opposed the Accord, like the

NB AHCC, who were not anti-French, but the accusation served to make the debate over the Accord more emotional.

There were genuinely anti-Francophone groups among the anti-Meech forces. In

1989 the Confederation of Regions (or CoR) Party emerged in New Brunswick in the midst of the Meech Lake ratification period. The party opposed the entrenchment of linguistic equality in New Brunswick in the constitution and provincial bilingualism in general. In the provincial election of 1991, CoR won twenty-one per cent of the popular vote and eight seats in the Legislative Assembly, becoming the official opposition.30

Although linguistic issues in New Brunswick had deeper roots than the Meech Lake debate, the Accord brought linguistic questions to the fore. In his study of the CoR party,

Matthew Baglole notes that Meech Lake rekindled anti-bilingual and/or anti-

Francophone sentiment in many Anglophone New Brunswickers.31 Baglole also argues that protest parties are most likely to emerge when main-stream parties form a consensus on a controversial issue.32 In New Brunswick, the Progressive Conservative and Liberal parties both agreed in principle with bilingualism and linguistic equality in New

Brunswick. Eventually, both the Liberals and Progressive Conservatives would also back the Meech Lake Accord.

This same rejection of elite consensus affected the national Meech Lake debate.

In Parliament, the leaders of the Liberal and New Democratic parties had joined the

Progressive Conservatives in supporting the Meech Lake Accord. The original all-party

29 Stephen E. Patterson, interview with author, 16 July 2007. 30 Geoffrey R. Martin, "We've seen it all before: The rise and fall of the COR party of New Brunswick," Journal of Canadian Studies/Revue d'etudes canadiennes, 33.1 (Spring 1998), 22-38,23. 31 Matthew James J. Baglole, "Some of the People, Some of the Time: The Confederation of Regions Party in New Brunswick, 1989-1991" (MA thesis, University of New Brunswick, 2000), 175. 32 See discussion of Meech Lake Accord, Baglole, 121-131. See also Martin, 25.

125 (and all-government) consensus indicated to many who opposed the Accord that their views were being totally ignored by their governments. Anti-French groups and parties, such as CoR, were able to draw on this disaffection, along with insecurity about the fate of Anglophone Canada during the Meech Lake period. Apart from the rise of CoR, a group called APEC (the Alliance for the Preservation of English in Canada) also surfaced in the mainstream public discourse on the Accord. APEC gained its greatest notoriety when some of its members desecrated a Quebec provincial flag at Brockville,

Ontario in September 1989.33 APEC also helped to convince over fifty municipalities, most notably Sault Ste. Marie and Thunder Bay, Ontario, to declare that they were unilingually English.34

While still seen as an opponent of the Accord, Frank McKenna received hundreds of letters from Meech Lake opponents who were concerned that the Accord would award Francophone Canadians power over Anglophone Canadians. Consider this postcard from Katherine M. Ridley of Mississauga, Ontario: "[p]lease hang in with your determination about the Meech Lake Accord. I am really worried about what is going on in Quebec & Canada as a whole. The French can carry on their language in their own homes or anywhere else[,] the Anglophones should have the same right."35 The fear that

Meech Lake would prevent Anglophones from living and working in their native language - let alone using it in the privacy of their own homes - demonstrates the extent of the confusion and misinformation surrounding the debate over the Accord. It also symbolizes the anti-French fear mongering on the part of groups like APEC. A

33Monahan, 174-175. Monahan, 186. See also, "Alliance Quebec endorses McKenna's plan: Minority-rights safeguards cited as improvement in pact," Ottawa Citizen, 22 March 1990. 35 Katherine M. Ridley, letter to Frank McKenna, 21 April 1989, Frank McKenna Operational Records, Box 0-89-2,2012-13, RS 738, PANB.

126 significant number of the anti-Meech Lake forces were anti-Francophone in their outlook.

Just as it was not the case that all Meech Lake opponents were anti-Francophone,

it was also the case that not all Francophones were pro-Meech. For Francophones

outside Quebec, the Accord represented a unique set of questions. The Francophone population of New Brunswick exemplifies a group that could not be easily classified as pro- or anti- Accord. The position of the Societe des Acadiens et Acadiennes du Nouveau

Brunswick (SAANB) on Meech Lake is an example of how complex the issue was for

Francophone communities outside Quebec. The SAANB, which had represented

Acadians since 1972, was the largest Francophone organization in the province and, as

such, claimed to speak for New Brunswick's French population. The organization's

original position was the same as that of the Federation des francophones hors Quebec -

the national umbrella organization of Francophone groups outside Quebec. They were

both against the Accord. Early in 1988 the Federation wrote to McKenna, noting, "La

Federation des francophones hors Quebec trouve incomplet et inacceptable le document

du 3 juin en ce qui a trait aux francophones de l'exterieur du Quebec. Nous sommes

persuades que des ameliorations doivent etre apporteees."37 The biggest sticking point

for the SAANB and other Francophone organizations was the provision in the distinct

society clause that called on Parliament and the provincial governments to "preserve"

their linguistic duality, whereas Quebec was to "preserve and promote" its English and

French communities.

Michael D. Behiels, Canada's Francophone Minority Communities: Constitutional Renewal and the Winning of School Governance (Montreal/Kingston: McGill-Queen's University Press, 2004), 12-18. 37 Federation des Francophones hors Quebec, letter to Frank McKenna, 7 March 1988, Department of Intergovernmental and Aboriginal Affairs files, "General Research," RS 1006, PANB. Emphasis in original.

127 Francophone communities across Canada had reason to believe that the governments of their provinces would refuse to support new initiatives and even rollback previous gains. In a 1988 court decision, Mercure v. Saskatchewan (A.G.), the courts found that the governments of Saskatchewan and Alberta were both bound to provide bilingual services by the terms of the North-West Territories Act, 1875, but that they could act unilaterally to change this. The provinces introduced identical statutes,

Languages Act, 1988, which freed the governments from any bilingual responsibilities.

Although it received significantly less media attention than the decision of the Quebec government to limit non-Francophone rights later that year, it served to encapsulate the fears of the Francophone communities outside Quebec. While the federal government protested Alberta and Saskatchewan's new language laws, the Quebec government tacitly supported the right of both provinces to legislate on language issues free from federal interference. The question of what it meant to "preserve" versus "promote" under the Accord became the crucial issue for Francophone minority communities. This question was even raised by Frank McKenna in his 1987 brief to the Joint Parliamentary

Committee that examined the Accord.

In New Brunswick, where the Francophone minority was proportionally larger and enjoyed better protection than in any other Anglophone-majority province, the question centred almost entirely on the possible entrenchment of the principles of "Bill

88," the Act Recognizing the Equality of the Two Official Linguistic Communities in

New Brunswick. Bill 88 was enacted by the Progressive Conservative government of

38 Behiels, 264-265. 39 In what became an oft-quoted passage of McKenna's brief, he noted, "I believe that our Constitution must recognize the obligation of Parliament to promote the existence of both linguistic groups throughout our nation. To only preserve a minority, is to condemn it to eventual assimilation." Frank McKenna, "Presentation to the Special Joint Committee on the Constitution," 25 August 1987, folder 5, series 2, UA RG 355, UNBA. Emphasis in original. Richard B. Hatfield in 1981. It affirmed the equality of the English and French linguistic communities in the province.41 As such, it was more akin to the communitarian nature of the Meech Lake Accord than the right for individuals to use

English or French, as protected in the Charter of Rights and Freedoms.42 Francophone and Acadian organizations, most notably the SAANB, expressed over and over again to the SCNBLA that if the terms of Bill 88 were entrenched in the constitution they could accept the Meech Lake Accord. The SAANB also felt that, while other Francophone minorities might remain threatened, the best New Brunswick could do was to lead by example.43 As they wrote in their brief to the SCNBLA, "[n]otre gouvernement doit, sans plus tarder, inscrire dans la constitution canadienne les principes contenus dans les trois articles contenus dans la Loi 88... En faisant reconnaitre notre difference a l'interieur de la Constitution... le Premier ministre sera alors plus en mesure de donner

1'example aux autres gouvernements provinciaux lorsqu'il parle de la promotion des francophones hors Quebec."44 The unique position of New Brunswick Francophones, as encapsulated by the viewpoint of the SAANB, continued to evolve.

Throughout 1988 and 1989, the Quebec government lobbied the SAANB and other Francophone groups to support the Accord.45 A memo sent to Frank McKenna by

New Brunswick Attorney-General James Lockyer reveals that the Federation des

Michel Cormier and Achille Michaud, Richard Hatfield: Power & Disobedience (Fredericton: Goose Lane Editions, 1992), 137. The preamble to Bill 88 recognizes three principles: "Recognition of English linguistic community and French linguistic community and affirmation of equality of status and equal rights of each; Protection of the equality of status and equal rights and privileges of official linguistic communities; Promotion of cultural, economic, educational and social development." 42 As defined in Section 16, Part I, Constitution Act, 1982. 43Behiels,261. 44 SAANB, brief to the SCNBLA, Department of Intergovernmental and Aboriginal Affairs, RS 1006 - R2006.291,PANB. Quebec Premier Robert Bourassa had a number of private meetings with SAANB in 1989. See Peter Lowrey, "Acadian group says it supports Meech," Telegraph-Journal, 21 October 1989. francophones hors Quebec sought McKenna as an ally in the face of intense pressure to adopt a pro-Meech stance from federal and Quebec officials: "The F.F.H.Q., according to [Yvon Fontaine] is coming under political and financial pressure to accept the present draft. Apparently, Quebec and federal programs for the F.F.H.Q. involve a lot of money and some subtle pressure may be not far away."46 Quebec officials argued that

Francophone minority scepticism would give ammunition to Anglophone opponents of the Accord.47 The failure of Meech Lake could mean a resurgence of sovereignty strong enough to remove Quebec from Canada. Eventually, despite early opposition, the

S AANB was convinced to support the Accord, announcing their complete commitment in February 1990.48

To try to win over the S AANB and perhaps make things easier for the New

Brunswick government, Quebec Minister of Intergovernmental Affairs Gil Remillard came out publicly in favour of the entrenchment of the terms of Bill 88. Given Quebec's position of total non-interference on the matter of the Alberta and Saskatchewan language laws of 1988, the province was clearly concerned about winning over the

SAANB.49 As SAANB official Real Gervais opined to the press, "[s]i on enleve le

Quebec, c'est 5 millions de francophones que le Canada perd. On a deja de la difficulte a se faire respecter comme francophones dans le pays, imaginez-vous maintenant qu'on

James Lockyer, memo to Frank McKenna, 5 April 1988, Department of Intergovernmental and Aboriginal Affairs files, "Meech Lake Strategy," RS 1006, PANB. Fontaine also asked that representatives of SAANB not attend any meetings between he and McKenna and/or Lockyer. 47 Behiels, 259. 48 "La SAANB dit oui a Meech!," L 'Accidie Nouvelle, 12 February 1990,1,3. 49 "Le ministre quebecois Gil Remillard est favorable a Penchassement de la Loi 88: 'Pourquoi Frank McKenna attend-il?"' L 'Acadie Nouvelle, 1 February 1989.

130 soit juste 1 million pour revendiquer nous droits." The fear of what might happen to

Francophone rights if Quebec voted to separate had come to outweigh any theoretical risk posed by the Accord. Their hesitation, however, had provided an opportunity - as

Quebec officials had worried - to challenge Meech Lake on the grounds that it was a

threat to pan-Canadian bilingualism.51 The SAANB's grudging support for the Accord

had been made easier, however, by the release of the SCNBLA's report.

The SCNBLA released their report on the Meech Lake Accord on 24 October

1989.52 The findings contained in the Final Report on the Constitutional Amendment,

1987 were not all that the NBAHCC had hoped.53 Most significant for New Brunswick,

the SCNBLA recommended that the principles contained in Bill 88 be entrenched in the

constitution through a bilateral agreement between the province and Parliament. As this

was a condition for virtually all Francophone groups' support, most notably the

SAANB, the recommendation went along way to satisfying the concerns of New

Brunswickers.54 The report criticized the process, suggesting more consultation in future

rounds, but did not argue that it meant the Meech Lake Accord was inherently flawed.55

In terms of substantive changes to the text of the agreement, the SCNBLA was sparing.

Sylvie Mousseau, "Gervais defend la position de la SAANB," L 'Acadie Nouvelle, 26 February 1990. The reasoning is all the more interesting because the SAANB supported the Oui side during the Quebec sovereignty referendum of 1980. 51 As the NBAHCC's brief to the SCNBLA stated, "the Accord... does damage to an already burgeoning bilingualism and attendant national relations. NBAHCC," "A Brief Opposing the Meech Lake Accord," 3, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 2, UA RG 355, UNBA. Don Richardson, "Meech report calls for changes," and "Panel favours check on power of premiers," Telegraph-Journal, 25 October 1989. 53 New Brunswick, Select Committee on the 1987 Constitutional Accord: Final Report on the Constitutional Amendment, 1987, Fredericton: Supply and Services, 1989. An excellent summary and substantial excerpts of the SCNBLA report can be found in Mollie Dunsmuir, The Meech Lake Accord: The Manitoba and New Brunswick Reports (Ottawa: Library of Parliament, 1989), Appendix 3. The following references to the SCNBLA's report are made to the excerpts in Dunsmuir, note that there are no page numbers for this appendix. 54 Dunsmuir, "Chapter XV," Appendix 3. 55 Dunsmuir, "Chapter V," Appendix 3.

131 They recommended that the distinct society clause be changed to require that Parliament preserve and promote English-speaking and French-speaking communities. They further recommended that the geographic reference to the locations of those two peoples be removed, altering the definition to recognize English- and French-speaking Canadians throughout Canada. It also recommended that the Charter of Rights and Freedoms be affirmed as a fundamental characteristic of Canada, in addition to the existence of

English- and French-speaking Canadians, in the distinct society clause.56

Apart from the distinct society clause changes, the committee recommended a number of other additions. Attempting to respond to the concerns of women's

organizations, it suggested that Section 28 of the Charter be added alongside sections 25

and 28 in Section 16 of the Accord (the so-called non-derogation clause).57 To address the concerns of the Yukon and Northwest Territories, the SCNBLA recommended that the territories be allowed to submit names to the federal government when vacancies

arise in both the Senate and the Supreme Court of Canada.58 The Accord had awarded this power to the provinces alone. The SCNBLA further recommended that formal

appointment bodies be established in each province and territory to fill judicial vacancies on the Supreme Court bench. The committee recommended, again in response to concerns of the two territorial governments, that the creation of new provinces not be

added to the list of items requiring unanimity for constitutional amendment and that the territories be consulted regarding the creation of new provinces.59

Dunsmuir, "Chapter VI," "Chapter VII," Appendix 3. 57 Dunsmuir, "Chapter VIII," Appendix 3. The SCNBLA accepted briefs and received as witnesses the governments of the Yukon and the Northwest Territories. Dunsmuir, "Chapter IX," Appendix 3. See appendix A of this thesis. 59 Dunsmuir, "Chapter XI," Appendix 3.

132 Recognizing the vulnerability of "have-not provinces," the SCNBLA recommended that Section 7 of the Accord, establishing the right of provinces to opt-out of new national shared-cost programmes in areas of provincial jurisdiction, include an affirmation of Section 36 of the Constitution Act, 1982, entrenching equalization payments.60 Finally, the SCNBLA recommended that specific agenda items - fisheries and Senate reform - not be entrenched for all future constitutional conferences. They recommended, however, that fisheries, Senate reform and Aboriginal rights be priorities for future conferences.61 The SCNBLA accepted the Accord's immigration provision without change.62 Public response to the report was mixed. Many Meech Lake opponents, including the NB AHCC, had come to see McKenna and the New Brunswick government as allies in their struggle against Meech Lake. Such groups were not impressed with the report.

Despite the cooling of their relationship with Premier McKenna and the Liberal government, the NBAHCC anticipated the SCNBLA's report to call for more substantive revisions to the Accord. In the weeks before its release, the NBAHCC became increasingly concerned about what the report would entail, even speaking out in the press in an effort to draw attention to what they perceived as a waffling in Meech

Lake policy.63 When the report was released, the Committee was quick to condemn it in the press. Crocker characterized it as, "namby-pamby," concluding that, "the people who took the time and effort to make representations [to the SCNBLA] have every right to

Dunsmuir, "Chapter XII," Appendix 3. 61 Dunsmuir, "Chapter XIV," Appendix 3. 62 Dunsmuir, "Chapter X," Appendix 3. 63 "Group Worried McKenna May Give In To Pressure," Fredericton Daily Gleaner, 18 October 1989.

133 feel betrayed by this report. Gayle MacDonald recalls the Committee's feelings: "We were disappointed... We had varying responses to their recommendations. We were

surprised by some of them. And I think that the Select Committee was trying to cover all

of the [political] bases. So it ended up being watered down...."65 Max Wolfe is blunter:

"I think we knew that they had their mind made up... I think, in that sense, the hearings

were pretty much a sham."66 For those who hoped the SCNBLA would signal the New

Brunswick government's intention to sink the Accord, they were very disappointed.

The SCNBLA's report paved the way for the New Brunswick government to

pursue a conciliatory or even pro-Meech Lake policy. Most importantly, the report was

offered as a basis for discussion, not a set of conditions that had to be met if New

Brunswick was to support the Accord. This gave McKenna and the provincial

government the maximum political room to manoeuvre.67 Not everyone in New

Brunswick was as disenchanted as the NBAHCC. An editorial in the Saint John

Telegraph-Journal - the position of which had been one of scepticism towards the

Accord - embraced the Premier's position whole-heartedly: "Whatever the final

outcome, whatever the verdict of history, New Brunswick must now be recorded among

those who stood tall for statesmanship, tall for a united Canada."68 As indicated above,

the report also answered the most pressing concern of the Francophone community and

the SAANB by calling for the entrenchment of the principles in Bill 88. Across Canada,

people waited to see what Premier McKenna would do with the recommendations, but

New Brunswick was no longer the only province holding up the Meech Lake Accord. In

64 "Not All Harmony In N.B.," Fredericton Daily Gleaner, 27 October 1989. 65 Gayle MacDonald, interview with author, 11 June 2007. 66 Max Wolfe, interview with author, 5 April 2007. For a discussion of New Brunswick's position vis-a-vis the pro-Meech governments, see Monahan, 181- 182. 68 "New Brunswick stands tall" (editorial), Telegraph-Journal, 28 October 1989.

134 Manitoba and Newfoundland the Accord had become the dominant issue in provincial politics.

Politics in Manitoba had undergone dramatic change in the months since New

Democratic Party premier Howard Pawley signed the Meech Lake Accord in spring of

1987. Although Pawley had agreed to the Accord, he remained sceptical. This was in part due to a surge in anti-federal government sentiment that had hung over the province since 1986. A Quebec aerospace firm had been awarded a military contract to service

CF-18 fighter jets in October 1986, notwithstanding the fact that a Manitoba company had entered a lower and technically superior bid in the tender process. This development served to demonize Brian Mulroney and make suspect any initiative by the federal government. In March 1988 a member of Pawley's caucus voted against his own party and the minority government fell to a vote of confidence.70 In the ensuing provincial election, the Progressive Conservative Party formed a new minority government led by Gary Filmon. Although Filmon was nominally in favour of the

Accord, he could not ratify it without the support of the opposition parties. The Liberal leader Sharon Carstairs, now leading the official opposition, was an ardent opponent of

Meech Lake, as was Pawley's successor Gary Doer. Under the rules of the Manitoba

Legislative Assembly, public hearings were required upon the introduction of constitutional agreements before they could be ratified. Pawley and then Filmon waited before introducing the motion. Given the "fed-bashing" sentiment in the province, the

Accord proved a political hot potato. The Progressive Conservative government dithered and finally introduced the motion to ratify the Accord on 16 December 1988. After that,

69 Monahan, 64. 70 "Stunning Upset Of Manitoba NDP: Government Loses Crucial Non-Confidence Vote," Fredericton Daily Gleaner, 9 March 1988,1.

135 political events in Manitoba moved far more rapidly. Ironically, it was an event in

Quebec that changed the direction of the Meech Lake debate in Manitoba.

On 18 December 1988 Quebec Premier Robert Bourassa announced that he would use the notwithstanding or non obstante clause to insulate his government's "Bill

178" from a decision of the Supreme Court of Canada. The Parti Quebecois government of Rene Levesque enacted La Charte de la langue frangaise, commonly known as "Bill

101," in 1977. The legislation, which made French the official language of Quebec, also made it illegal for commercial signs in the province to display any language other than

French.71 The section of the law dealing with commercial signs was challenged in the courts on the grounds that it violated freedom of expression. On 15 December 1988, the

Supreme Court of Canada ruled against the Government of Quebec, declaring the portion of Bill 101 proscribing commercial signs in languages other than French to be unconstitutional.72

Although the Quebec Liberal Party had promised to allow bilingual signs during the election that brought it to power in 1985, the Premier had taken a harder line in response to nationalist criticism.73 Three days after the Supreme Court decision,

Bourassa indicated that the Quebec government would bring forward new legislation to amend Bill 101 and re-introduce the French-only signs provision, although there would be a provision allowing for bilingual signs inside businesses. The new legislation, known as Bill 178, would include a reference to Section 33 (the non-obstante clause) of the Constitution Act, 1982, thereby shielding the law from the Supreme Court ruling.

Many Meech Lake opponents had claimed that linguistic-minority rights would be

71 Monohan, 155-156. 72 Monahan, 155. 73 Monahan, 156.

136 harmed by the Accord, including the rights of the Anglophone community within

Quebec. Bourassa all but confirmed this when he announced to the press that, were the

Accord's distinct society clause in effect, the courts would have found French-only sign legislation constitutional and there would have been no need to invoke the non-obstante clause.74 Patrick Monahan goes so far as to describe this as the ''turning-point for

Meech." Although there was no actual connection between the Accord and Bill 178, the battle for public opinion in Canada outside Quebec was dealt a serious blow.

When Filmon introduced the Accord in the Manitoba Legislative Assembly the day after the Supreme Court decision on Bill 101, but before Bourassa's decision to use the non-obstante clause, he announced that it was an important step in the cause of national unity, but he quickly changed his tune.76 The day after Bourassa's announcement of his intention to use Section 33 and in the midst of the uproar it precipitated, Filmon withdrew the motion. In his remarks to the Manitoba Legislative

Assembly on the matter, Filmon was clear on the reason for his reversal: "I believe the decision made yesterday by the Government of Quebec to restrict minority language rights in that province violates the spirit of the Meech Lake Accord."77 In March 1989

Filmon announced an all-party study group, the Manitoba Task Force on the Meech

Lake Accord, that would travel the province over 1989, accepting briefs and receiving witnesses in a manner similar to the SCNBLA.78

74 Monahan, 161. 75 Monahan, 155. His remarks, depending on the reporter's disposition towards the Accord, were interpreted quite differently by the press: '"Manitoba's Filmon makes plea to save Meech' was the headline in the anti- Meech Toronto Star, while the pro-Meech Globe and Mail reported 'Filmon voices doubt on Meech Lake agreement.'" Monahan, 158. 77 Brock, 52. 78 The task force was chaired by University of Manitoba political scientist Waldron N. Fox-Decent. The primary differences between the task force and the SCNBLA were that the task force allowed only The report of the Manitoba Task Force on the Meech Lake Accord, released on

23 October 1989 (the day before the New Brunswick report), was as anticipated across the country as the SCNBLA's report.79 Unlike the New Brunswick report, the task force called for sweeping changes to the Meech Lake Accord. Most importantly, it also recommended that these changes be a condition of Manitoba's ratification and stated flatly that the Accord in its present form was unacceptable.80 Most notable was the task force's treatment of Section 1 of the Accord, the distinct society clause. The task force suggested a much longer "Canada Clause" which included among the list of fundamental characteristics of Canada the following: "the existence of... a federal state with a distinct national identity"; "the existence of aboriginal peoples"; "the existence of

Canada's multicultural heritage...." It also removed the controversial wording of promotion and preservation, replacing it with a requirement of all provinces to "uphold" these fundamental characteristics.81 In addition, the task force recommended that Section

7, the spending power provision, be deleted from the Accord and that its deletion serve as a condition of Manitoba's ratification of Meech Lake.82 The task force report also called for Aboriginal and territorial leaders to be included in future constitutional discussions.83 The rest of the report was similar to the SCNBLA's report.

Manitobans to appear. The SCNBLA did not travel the province and was made up only of Liberal MLAs (of course, there were no non-Liberal MLAs in the New Brunswick Legislative Assembly at the time). Brock, 54-55. References to the Manitoba Task Force on the Meech Lake Accord report are taken from Dunsmuir, Appendix 2. Note that the pagination, which appears in Dunsmuir, is taken from the original report. Don Hoyt, "N.B. bends over far in invitation to salvage Meech Lake," Telegraph-Journal, 25 October 1989. 80 The recommendations of the Manitoba Task Force report are quoted in full in Brock, 72-79, 72. Dunsmuir, Appendix 2, 72-73. 82 Dunsmuir, Appendix 2, 75. 83 Dunsmuir, Apendix 2, 77-78.

138 With the release of the Manitoba and New Brunswick reports, a new phase in the

Meech Lake Accord debate had begun. For the NBAHCC, their biggest advantage had been their solidarity with the McKenna government in opposition to the Accord.

Although the degree to which Filmon and McKenna would adhere to their respective committees' reports was unclear, there were two very different sets of recommendations before the premiers. The New Brunswick report had struck a far more conciliatory tone, giving McKenna room to manoeuvre and negotiate some kind of parallel accord. In keeping with the sentiment their leader had expressed when he appeared before the Joint

Parliamentary Committee examining the Accord in the summer of 1987, the SCNBLA had called only for additions to the Accord, but not subtractions. None of Quebec's five

conditions were significantly altered.

This stands in marked contrast to the Manitoba task force report, which called for changes to the distinct society clause, the spending power provision and the unanimity rule for new provinces, three of Quebec's "minimum demands." As a result, New

Brunswick was no longer the greatest obstacle to the ratification of the Meech Lake

Accord. The NBAHCC began to shift its focus away from the New Brunswick

government. Gayle MacDonald recalls the adjustment the committee made. "I continued

on with my national work... just because New Brunswick didn't sink it didn't mean [it was impossible]... So for me the battle just continued in a different form... There was nothing left to do in the province."84 If the Accord was going to be stopped, it was just as likely to be in one of the other provinces now expressing discontent with Meech

Lake.

Gayle MacDonald, interview with author, 11 June 2007.

139 Meanwhile, changes in the political landscape in Newfoundland further called the Accord's ratification into question. As in New Brunswick, the Meech Lake Accord had been signed by a premier who had participated in the repatriation round, Brian

Peckford. The Progressive Conservative Premier had stepped down in early 1989 and his successor called an election that spring. On 20 April 1989 the Liberals, led by Clyde

Wells, won a majority in the Newfoundland House of Assembly.85 Wells had spent most of his career as a constitutional lawyer and had an established and rigid conception of the form the Canadian constitution should take. That vision, heavily influenced by Pierre

Elliott Trudeau, centred on a strong federal government and strict adhesion to the principle of equality of the provinces.86 Like McKenna, Wells swept a Conservative government out of office after seventeen years of unbroken rule. Also like McKenna,

Wells had expressed concerns over the Accord while in opposition.87 This is where the similarity ceased. While McKenna nurtured an ambiguity about his position on Meech

Lake that allowed him to court the support of Meech Lake opponents and then come out in favour of the Accord without ever contradicting himself, Wells left not a shadow of a doubt as to where he stood.

Fittingly, despite Wells' opposition to the Accord, the New Brunswick government did not believe that his position had much in common with their own.

Donald Dennison, Assistant Deputy Minister and Deputy Minister of Intergovernmental

Affairs during the Meech Lake period, remarked on the Newfoundland premier in a memo shortly after his election, "Mr. Wells' position is not that much akin to our own,

85Monahan, 171. Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Vancouver/Toronto: Douglas & Mclnryre, 1990), 203-207. Cohen goes so far as to describe Wells as "Trudeau in power." Wells constitutional vision was similar to Trudeau's, although he was a much stronger advocate for the equality of the provinces principle. 87 Cohen, 205.

140 especially in that he has not demonstrated any interest in aiding the cause of minorities."88

To the NBAHCC, Wells looked like a fine replacement for McKenna as an ally in the fight against the Accord. Crocker felt that Wells knew the constitution better than most premiers. She likens him to Trudeau: "Clyde Wells was a real Constitutional lawyer... I think an awful lot of people didn't like him because he was arrogant, but, they felt that way about Pierre Trudeau too. But I had a lot of time for Clyde Wells."89 In early 1990 the NBAHCC sent a letter to Wells indicating their disappointment with the findings of the SCNBLA and urging him to carry on. The Committee wrote to Wells that, "[gjiven the tenor of the vast majority of the briefs submitted to the Select

Committee, we were dismayed by the essentially weak position adopted in the Select

Committee's Report. We feel strongly that the Committee did not truly listen to what the people had to say, and wrote a report that reflected a pre-ordained position."90

From the start of the debate over the Accord, Wells indicated that, were he elected, Newfoundland's Meech Lake policy would change. Although the Progressive

Conservative government ratified Meech Lake on 7 July 1988, Wells announced that he might rescind the House of Assembly's approval of the Accord.91 In June 1989 Wells also hired one of the co-founders of the stridently anti-Meech Canadian Coalition on the

Constitution, Toronto-based constitutional lawyer and Liberal Party organizer Deborah

Coyne, to act as his constitutional advisor.92 Wells's first major foray onto the mega-

88 Don Dennison, memo to Frank McKenna, et al, 28 April 1989, "Re.: Effects of Newfoundland Election on Meech Lake" Frank McKenna Operational Records, Box 0-89-1,2012-10, RS 738, PANB. 89 C. Anne Crocker, interview with author, 22 March 2007. 90 NBAHCC, letter to Clyde Wells, 22 January 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 1, series 1, UNBA. 91 Coyne, 34. Cohen, 206. 92 Coyne, 7.

141 constitutional stage came at the first ministers' conference at Ottawa, 9-10 November

1989, where he presented a document entitled "Constitutional Proposal: 'An Alternative to the Meech Lake Accord.'" His proposal was similar to the findings of the Manitoba

task force. His recommendations included a complete re-drafting of the distinct society

clause into a Canada Clause and limiting the distinctiveness of Quebec to recognition of

the civil bar.93 It also included major reform to the Senate along similar lines as the

"House of the Federation" proposed by Trudeau in the lead-up to the repatriation

round.94 Wells was quickly embraced by Canadians opposed to Meech Lake.95 As was

the case with Frank McKenna, the Newfoundland Premier received a veritable tidal

wave of letters offering support for his position. According to Coyne, he received over

30,000 communications between November 1989 and June 1990.96 In addition, Wells

quickly fell under intense pressure from the federal government to change his Meech

Q*7 Lake position. It was clear from his election that Clyde Wells had inherited the mantle

of expectations that Meech Lake opponents had once been bestowed upon Frank

McKenna.

McKenna's constitutional position also became clearer. On 21 March 1990, he

unveiled his proposal to reconcile at least some opponents to the Accord. The strategy

now supported by the New Brunswick government was to attempt to win support for a

"Constitutional Proposal: 'An Alternative to the Meech Lake Accord,'" submitted by The Government of Newfoundland and Labrador to the First Ministers' Conference," 9-10 November 1989, Frank McKenna Operational Records, Box 0-89-1,2012-10, RS 738, PANB. 94 See Pierre Elliott Trudeau, A Time for Action: Toward the Renewal of the Canadian Federation (Ottawa: Supply and Services, 1978). According to Fredericton legend, one woman named her pet bird "Clyde," in honour of the Newfoundland premier. 96 Coyne, 5. For an account of many such incidence of pressure, see Coyne. companion resolution.98 The proposal closely followed the findings of the SCNBLA, as

well as attempting to address some of the issues raised by the report of the Manitoba

task force and the Government of Newfoundland. In the speech introducing the

companion resolution, the Premier stressed the need to compromise: "we have attempted

to balance the sentiments expressed by the supporters of Meech Lake, along with the

very heartfelt concerns being raised across Canada. I fervently believe that it holds the

basis for a solution to the current impasse."99 McKenna also maintained his one

consistent message regarding changes to the Accord: "we have been scrupulous to

merely add, and not delete."100

The companion resolution sought nine changes to the Accord: changes to the

process for future constitutional negotiations; entrenchment of the principles of Bill 88;

the addition of promotion to the responsibility of Parliament to preserve the linguistic

duality of Canada; the addition of Section 28 of the Charter to Section 16 of the Accord;

allowance for the participation of the territorial governments in filling vacancies in the

Senate and on the Supreme Court bench; limitation of the opt-out power of provinces to

new shared-cost programmes, as well as a review of this feature in five years time; an

exemption from the unanimity requirement for the creation of the two territories as new

The terminology - parallel/companion resolution or accord - shifted over time. Originally, McKenna hoped that the agreement could be ratified by all eleven governments in parallel with the Meech Lake Accord, see Dan Toner, "Parallel pact must be simultaneous: premier," Telegraph-Journal, 27 October 1989. McKenna indicated in his speech, however, that he was willing to ratify Meech Lake once it was "clear that these additions have achieved the necessary degree of support." Hence the parallel accord became the companion resolution. Frank McKenna, "Introduction of Resolution on the 1987 Constitutional Amendment and Resolution to Authorize Amendment to the Constitution of Canada," 19, 21 March 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 18, series 2, UNBA. The term "companion resolution" is used here to avoid confusion. Frank McKenna, "Introduction of Resolution on the 1987 Constitutional Amendment and Resolution to Authorize Amendment to the Constitution of Canada," 5,21 March 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 18, series 2, UNBA. 100 Frank McKenna, "Introduction of Resolution on the 1987 Constitutional Amendment and Resolution to Authorize Amendment to the Constitution of Canada," 18, 21 March 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 18, series 2, UNBA. provinces; the inclusion of Aboriginal and territorial representatives in future constitutional negotiations; and, finally, the inclusion of a discussion on fisheries in the next first ministers' conference on the constitution only.101 The degree to which the companion resolution mirrored the SCNBLA's findings was remarkable. Clearly, the resolution was already under consideration before the SCNBLA released its report.

Whether what McKenna wanted to include in a companion resolution shaped the

SCNBLA's findings, or vice versa, is impossible to say.

The federal government was quick to respond to the New Brunswick proposal for a companion resolution.103 Prime Minister Mulroney appeared on television the day after McKenna's proposal was tabled in the Legislative Assembly to inform Canadians that he was striking a special Parliamentary committee to examine McKenna's proposal.104 Mulroney named Conservative Member of Parliament Jean Charest as committee chair. The committee was formally called the House of Commons Special

Committee on the Proposed Companion Resolution to the Meech Lake Accord, but was almost always referred to as the Charest Committee. It began hearings on 9 April 1990 - only eight weeks before the ratification deadline. The committee travelled across the country, holding hearings in Ottawa, Yellowknife, Whitehorse, Vancouver, Winnipeg

The inclusion of Bill 88 met with a very positive response from New Brunswick's Francophone press. See, "Meech En Mars Le Degel" and "McKenna promet la Loi 88," 22 March 1990 L 'Acadie Nouvelle, 1, 2-3. 102 A memo from Donald Dennison warned that announcing a parallel accord before the SCNBLA released its report would be politically unsound. Apparently the idea of releasing the report at a First Ministers' Conference that was to take place in September 1989 was under discussion. The conference was ultimately cancelled by the Prime Minister. Donald Dennison, memo to Francis McGuire & Aldea Landry, no date, Department of Intergovernmental and Aboriginal Affairs files, "Meech Lake Strategy," RS1006,PANB. 103 Mulroney remarked to the press, "Canadians are indebted to Premier Frank McKenna... for his act of leadership." See, David Vienneau & Matt Maychak, "PM to address nation, hails Meech proposal: McKenna's bid to break logjam called 'helpful'" Toronto Star, 22 March 1990. The same article notes the cautious support of Ontario Premier David Peterson and Quebec Premier Robert Bourassa's rejection of the companion resolution. Clyde Wells also found McKenna's proposal unacceptable. 104Monahan, 189. and St. John's, with 160 witnesses appearing. The first witness to appear was Frank

McKenna.105 Other witnesses who appeared before the committee included many of the citizens groups that had appeared before the SCNBLA, as well as the Joint

Parliamentary Committee and the Manitoba Task Force on the Meech Lake Accord.

The NBAHCC recognized the opportunity to state its views on the Accord to a

government committee once more. The Committee members made plans to attend the

Charest Committee's St. John's hearings and began drafting a brief. It was decided that

it would focus on the impact of the distinct society clause, linguistic duality, and

process, as well as making brief reference to Aboriginal rights and the spending power

provision.106 The brief was co-written by Crocker, Wolfe and Wright and informally

discussed in principle with the larger NBAHCC.107 In the introduction, the NBAHCC

made it clear that, while they may be from New Brunswick, they did not support

McKenna's companion resolution.

We reject... the implication that New Brunswickers in the majority wholly support the specific recommendations included in Mr. McKenna's resolution. They do not. We do not. The proposals contained in the companion resolution reflect the recommendations of the [SCNBLA] which was struck to conduct hearings and prepare a report on the Meech Lake Accord. With all due respect to that [c]ommittee, its report and recommendations did not sufficiently address the... concerns expressed in the majority of submissions.108

1U5Monahan, 192. 106 "Brief of the New Brunswick Ad Hoc Committee on the Constitution to The House of Commons Special Committee on the Proposed Companion Resolution to the Meech Lake Accord," New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. 107 C. Anne Crocker, Max Wolfe, Elaine Wright, letter to Charest committee, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. "Brief of the New Brunswick Ad Hoc Committee on the Constitution to The House of Commons Special Committee on the Proposed Companion Resolution to the Meech Lake Accord," New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. The NBAHCC forwarded its brief to the Charest committee with a request that they be allowed to appear at the hearings in St. John's on 12 April 1990.109

Not all of the groups who wished to appear before the Charest committee were

invited.110 Interestingly, the NBAHCC was also excluded from giving testimony before the Charest committee. The reason for this exclusion is unknown. Although the

committee had tight guidelines and many applications, it seems odd that such a well

organized group was ignored. The NBAHCC was, naturally, disappointed to discover

that it would not be appearing in St. John's. To make matters worse, the Committee

discovered this by informal word of mouth passed through Member of Parliament for

Fredericton, Bud Bird, as opposed to an official reply from the Charest committee's

clerk.111 Crocker protested the NBAHCC's exclusion in a letter to the Jean Charest: "We

are ordinary Canadians who feel that the Constitution belongs to all of us. We reject

categorically the label 'anti-Quebec' which has been used to try to silence opposition to

the Accord in its present form."112 The NBAHCC was denied the chance to address the

Accord publicly before the Charest Committee, but they had not yet made their last

public statement.

C. Anne Crocker, Max Wolfe, Elaine Wright, letter to Charest committee, 12 April 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. As with the provincial committees, including the SCNBLA, presenters whom the committee members expected to be racist or particularly offensive were not invited. This is common practice for government committees, particularly when dealing with sensitive issues in a public forum. Witnesses appear at the discretion of the committee chair. For example, the SCNBLA received a brief from the Christian Heritage Party of Canada and a number of rabidly anti-Francophone individuals, but none were allowed to appear at the committee's hearings. 111 C. Anne Crocker, letter to Jean Charest, 2 May 1990, letter to Charest committee, 12 April 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. 112 C. Anne Crocker, letter to Jean Charest, 2 May 1990, letter to Charest committee, 12 April 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 2, UNBA. The report of the Charest committee was released on 17 May 1990, roughly five weeks before the Meech Lake ratification deadline.113 The report included the proposals

outlined in McKenna's companion resolution with some additions.114 It also called for

an addition to the distinct society clause explicitly stating that it would not affect the

rights guaranteed in the Charter of Rights and Freedoms. Concerning Senate reform, a

"sunset clause" was proposed.115 The Charest report also called for a "Canada Clause,"

modelled on the one put forward in the report of the Manitoba Task Force.116

Meant to identify a workable compromise, the report was released under dark

clouds and was received poorly. On 6 April 1990, Clyde Wells had followed through

with his election promise to hold a vote to rescind the House of Assembly's earlier

ratification of Meech Lake.117 The motion was easily approved and suddenly there were

three provinces that had not ratified the Accord. The Government of Quebec, which had

already objected to McKenna's companion resolution, quickly denounced the Charest

report.118 Lucien Bouchard, outraged at the proposed changes to the Accord, resigned

from his post as Minister of Environment in the federal cabinet.119 The same week the

Charest report was released, James Lockyer, Attorney General of New Brunswick, met

with Quebec intergovernmental affairs minister Gil Remillard and Ontario attorney

113 Monahan, 193. Canada, Report of the House of Commons Special Committee on the Proposed Companion Resolution to the Meech Lake Accord, (Ottawa: Queen's Printer, 1990). The Accord added changes to the Senate to the list of items that required unanimous approval for constitutional amendment. Despite its inclusion on the agenda of future constitutional conferences in perpetuity, many worried that the unanimity provision made Senate reform impossible. The sunset clause called for the return of the Senate to the seven provinces/fifty per cent of the population amendment category in five years if there had been no movement towards change. 116 For a summary of the Charest report's findings, see Monahan, 193. Coyne, 77. See also "Nfld. rescinds Meech support: 'I feel that I've done what was right': Premier Clyde Wells," 6 April 1989, Moncton Times & Transcript, 1. 118 Monahan, 194-195. 119 "Bouchard quits cabinet in Meech furor," Gazette, 22 May 1990,1. In all, three Quebec Members of Parliament quit the Conservative caucus over the Charest report. general Ian Scott. Lockyer reported to McKenna that the two felt the Charest report was

"unmanageable and essentially hopeless." He also indicated that New Brunswick should not move to ratify the Accord until at least six provinces supported its companion resolution.120 The Charest report did not appear to have laid the groundwork for compromise as Mulroney and McKenna had hoped.

Brian Mulroney called a First Ministers' conference to try to resolve the impasse.

It began with a supper on the evening of 3 June 1990 and continued for a full seven days. The meetings had an air of high-stakes drama about them and the Canadian

Broadcasting Corporation offered near around-the-clock coverage of the negotiations.

Despite the outrage expressed in the past three years over the process by which the

Accord was negotiated, the first ministers' meetings were conducted behind closed doors. Shortly after the conference had finally ended Mulroney admitted to the press that he had gambled on late negotiations to increase the pressure, which he described as his

"roll of the dice."122 After the Accord's failure the remark would lead many to blame the

Accord's failure on what they saw as the Prime Minister's cavalier attitude.123

At the end of the emotional week of negotiations, the premiers had once again formed a consensus, but with two major caveats. Both Gary Filmon and Clyde Wells

James Lockyer, memo to Frank McKenna, 24 May 1990, "Re: Meeting in Quebec City with Gil Remillard & Ian Scott," Frank McKenna Operational Records, Box 0-90-13,2050-1, RS 738, PANB. 121 For a discussion of the role media played in the negotiations, see David Taras, "How Television Transformed the Meech Lake Negotiations," in David E. Smith, Peter Mackinnon & John C. Courtney, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishing, 1991): 169-180. Coyne jokes that CBC Newsworld was referred to as CBC Meechworld by officials in the Newfoundland government. 122 The comment appeared in an interview published in the Globe and Mail on 12 June 1990, three days after the first ministers' conference ended. Coyne, 136-137. Mulroney's admission "awakened what Tory pollsters [knew was] is a latent mistrust for Mulroney." See Michel Cormier, Sunday Morning, broadcast 24 June 1990, Canadian Broadcasting Corporation, "Rolling the Dice on Canada," From Cheers to Jeers: The Mulroney Years. 2006. (10 January 2007).

148 signed the political agreement, the Final Communique: First Ministers' Meeting on the

Constitution, 9 June 1990, but affixed asterisks beside their names.124 In accordance with the Manitoba Legislative Assembly's rules, Filmon agreed to the revised Meech

Lake Accord pending a round of public committee hearings. Wells promised to submit

the Meech Lake Accord to a free vote in the Newfoundland House of Assembly or a

provincial referendum. Frank McKenna also agreed to instruct his caucus to ratify the

Accord as soon as possible. There were now two weeks left on the ratification

countdown clock. This was Canadian constitution-making at its most dramatic.

The new agreement contained six broad sections. The first pledged the premiers

of Manitoba, New Brunswick and Newfoundland to "use every possible effort to achieve

a decision prior to June 23,1990" on ratifying the Accord. Section two dealt with Senate

reform, which had become a major bone of contention for Clyde Wells. It committed the

first ministers to work towards an elected Senate with more equitable representation and

more effective powers. It also pledged the first ministers to come to an agreement by 1

July 1995. In the event that they could not, it reallocated Senate seats to make them

more equitable. This was possible because Ontario Premier David Peterson had agreed

to relinquish six seats for re-distribution. The third section outlined changes that would

be made to the Accord amendments immediately after ratification. These included the

following: the addition of Section 28 (sex equality rights) to Section 16 (the non-

derogation clause) of the Accord, the inclusion of the territories in the Senatorial and

Supreme Court appointment processes; a commitment to discuss minority-language

concerns; and an agreement to hold regular constitutional conferences on Aboriginal people's issues.

124 See Appendix E.

149 Section four set out the agenda for future constitutional conferences. These were to include the creation of new provinces from the territories, the drafting of a "Canada clause" and agreement to review a number of constitutional provisions, including the amending formula. The fifth section acknowledged the concerns raised by the distinct society clause. The sixth and final section committed Parliament and the Legislative

1 0< Assembly of New Brunswick to entrenching the principles of Bill 88. The agreement retained some similarities to the companion resolution and acknowledged some of the findings of the Charest report. Any action on the items articulated in sections two through six required the ratification of the Accord by the governments of Manitoba,

New Brunswick and Newfoundland. Amazingly, it appeared that the Meech Lake

Accord had been saved. Donald Dennison recalls that he was sure the Accord had been •J *yf: salvaged: "I mean, why would anybody deliberately torpedo it?"

Following the first ministers' conference, the NBAHCC offered their last substantial public statement on the Meech Lake Accord. In a pointed radio commentary for the Canadian Broadcasting Corporation, Crocker attacked McKenna: For those who had been effectively denied representation in other than the most patriarchal sense, the native peoples, women, multicultural minorities and the disabled it was a bitter harvest indeed... but surely, Mr. McKenna's principles, such as they were, demanded that he defend the views and interests of New Brunswickers, and the interests of Canada as a whole, more vigorously than he did. Mr. McKenna's haste to join the big boys' club at the expense of his often eloquently expressed vision of Canada, has left New Brunswickers with a feeling of embarrassment and the taste of ashes.127

125 For the complete text see Appendix E. 126 Donald Dennison, interview with author, 11 July 2007. 7 C. Anne Crocker, "Commentary," broadcast by the Canadian Broadcasting Corporation, June 1990, New Brunswick Ad Hoc Committee on the Constitution fonds, folder 17, series 1, UNBA. As Crocker recalls, "I was just absolutely livid with Frank McKenna." Max Wolfe recalls his disappointment with the Premier's performance: ".. .that was the beginning of the big disillusionment as far as I was concerned. I thought he was, quote, 'one of us,' whatever the hell that means, and his jumping ship on Meech made me realize, no, he's just same old, same old. I was very disappointed."129 New Brunswick passed the Accord on 15 June 1990. TheNBAHCC's disappointment, however, was short lived.

The Accord compromise began to unravel almost immediately in Manitoba. All three party leaders had agreed to re-introduce the Meech Lake motion and somehow find a way to accommodate the requirement for committee hearings on the Accord. In order to alter the regular proceedings of the Legislative Assembly and expedite the hearings process, the unanimous approval of the ML As was required.130 Elijah Harper, a Cree,

New Democratic Party MLA, refused to support the procedural motion upon its introduction on 12 June 1990.131 Harper was unhappy with the lack of attention

Aboriginal peoples' issues had received. Without his agreement, the Manitoba government could not hold hearings and thus could not vote on the Accord. Moreover, thousands of Manitobans who opposed the Accord requested to appear as witnesses before any committee examining the Accord, making an expedited hearings process politically difficult.132

Once again, Meech Lake proponents ratcheted up the threats of the dire consequences should the Accord fail. Throughout the spring of 1990 the media featured countless reports on the increasing support for Quebec sovereignty and the possible

128 C,. Anne Crocker, interview with author, 22 March 2007. 129 Max Wolfe, interview with author, 5 April 2007. 130 Monahan, 234. 131 Coyne, 139. 132 Coyne, 133.

151 break-up of Canada.133 Numerous polls also showed that Canadians were not only divided over Meech Lake, but that the majority of them did not approve of the agreement.134 In Newfoundland, Clyde Wells waited to see what would happen in

Manitoba before holding a free vote on the Accord.

On Friday, 22 June 1990, the last weekday before the Accord expired, Elijah

Harper remained resolute. The Manitoba Legislative Assembly adjourned for the weekend at noon without ever having voted on the Accord.135 In Newfoundland, after a somewhat desperate attempt, broadcast on live television, on the part of the Minister for

Federal-Provincial Relations Senator Lowell Murray to persuade the Premier to proceed,

Wells decided not to hold a free vote as he had agreed to do at the first ministers' meeting.136 The Newfoundland premier argued that the vote would likely be against the

Accord and that such a rejection would only serve to fuel the backlash in Quebec. The

House of Assembly adjourned at eight o'clock on the evening of 22 June, officially

deferring the motion.

The Meech Lake Accord was effectively dead, although its technical expiration

did not come until midnight on 23 June 1990, three years after Quebec had become the

first province to ratify the Accord. In a live televised address the following morning,

Mulroney laid the blame for the Accord's failure at the feet of Clyde Wells and the

For example, see "Sovereignty support balloons to 67%," Ottawa Citizen, 23 March 1990. As well, the Montreal newspaper La Presse had begun to regularly publish their articles about Meech Lake under the heading, "La Crise Constitutionelle." 134 Edison Stewart, "Ordinary Canadian split on Meech," Toronto Star, 14 May 1990. The poll published with this story found the following: across Canada, the percentage of people who feel Meech Lake is: a good idea, 35%; a bad idea, 46%. Within Quebec, support for independence: 48% yes; 47% no. Within Quebec, support for sovereignty association: 60% yes; 33% no. 135 Coyne, 145. 136 The federal government, especially Minister for Federal-Provincial Relations, Senator Lowell Murray, argued that if Newfoundland ratified the Accord, the Supreme Court might rule that the ratification deadline could be extended due to the procedural nature of Manitoba's inability to approve Meech Lake. Coyne refers to this as "the finalmanipulation " by Ottawa. Newfoundland House of Assembly. To counter the prophecies of doom should the

Accord fail that had emanated from the federal government, the Canadian ambassador to the United States appeared on television to reassure American investors of the stability of the nation. Minister for External Affairs, Joe Clark, made similar statements in the following days.138 Many wondered what the future of Canada would hold.

Although many had claimed that the future of Canada would be imperilled should the Accord fail, the NBAHCC had never accepted that argument. Crocker was the most unequivocal of all the members of the Committee. Recalling her feeling at the death of the Accord, she exclaims, "Yipee! It didn't matter that we hadn't done it here.

But we had contributed to the overall rejection of Meech... we took a bit of credit for that, because it was New Brunswick, initially, along with the [AHCWC] that started raising hell."139 Max Wolfe, echoing Crocker's sentiment remembers being: "Absolutely delighted, because we really saw the whole thing as being a real danger to Canada - a... fragmentation of the country."140 Gayle MacDonald recalls feeling a sense of "relief."

She continues, "I don't know... but I always believed that the people of Canada wouldn't let it happen... and the politicians just couldn't see how the country... couldn't accept something on the whole that was dealt in secret... It was an old strategy that had worked for many years, but Mulroney pulled it one too late."141 MacDonald's remarks reveal the sense she and the other Committee members had that their inclusion in

Address by the Prime Minister of Canada, broadcast 23 June 1990, Canadian Broadcasting Corporation, "The Consequences of Meech's Failure," Constitutional Discord: Meech Lake, CBC Digital Archives, 2006. (16 August 2007). John Valorzi, "Government moves to calm U.S.: Clark, Burney go on television to explain constitutional breakdown," Ottawa Citizen, 25 June 1990, A3. 139 C. Anne Crocker, interview with author, 22 March 2007. 140 Max Wolfe, interview with author, 5 April 2007. Gayle MacDonald, interview with author, 11 June 2007.

153 constitution-making and their conception of the constitution was just and would be proven so.142

The immediate effects of the failure of the Meech Lake Accord were a cooling- off period in federal-provincial negotiations and a retreat into reflection. In Quebec, the provincial Liberal Party and the National Assembly both established committees, the

Allaire and Belanger-Campeau committees, respectively, to examine the future of

Quebec's place in confederation.143 Both committees accepted the possibility of sovereignty. Quebec Premier Robert Bourassa also announced that in future, Quebec would not negotiate as one often provinces, but only on a bilateral basis with the federal government.144 The Allaire committee called for a radical reorganization of confederation with the federal government stripped of most of its powers.145 The federal government struck the Citizens' Forum on National Unity to gather the thoughts of

Canadians on their nation's future. The Government of New Brunswick also got in on the action, striking the New Brunswick Commission on Canadian Federalism in autumn

1990.146

142 Allan C. Cairns notes that the citizen's groups that achieved constitutional recognition in the Charter of Rights and Freedoms not only see themselves as "legitimate participants" in constitution-making, but also "tend... to have their own Whiggish versions of colony-to-nation ascents appropriate to their achieved constitutional status, for example, women ([Section] 28) and third-force Canadians ([Section] 27)." Allan C. Cairns, "Constitutional Minoritarianism," in Allan C. Cairns & Douglas E. Williams, eds., Reconfigurations: Canadian Citizenship and Constitutional Change (Toronto: McClelland & Stewart, 1995): 119-141,127. 143Monahan,261. 144 See "Fini la constitution! Quebec negociera uniquement avec Ottawa; Bourassa engage un processus de reflexion" La Presse, 24 June 1990,1. Monahan, 262. The effects of the Allaire Committee may be seen as far reaching. Mario Dumont, present leader of Quebec's "autonomist" Action Democratique du Quebec party was the Quebec Liberal Party youth wing representative on the Allaire committee. He and committee chair Jean Allaire left the Liberals when the party declined to adopt the Allaire report, "A Quebec Free to Choose," as party policy. He and Allaire founded Action Democratique du Quebec in 1994. See Konrad Yakabuski, "Could this be Mario's breakthrough election?," Globe and Mail, 10 March 2007. 146 "New Brunswick's Commission on Canadian Federalism," Frank McKenna Operational Records, Box 0-90-7,2012-12, RS 738, PANB.

154 The period of study eventually yielded another constitutional round: the

Charlottetown Accord. The Accord was an attempt to accommodate the Quebec conditions that led to the negotiation of the Meech Lake Accord while also seeking to address many of the issues that were raised during the Meech Lake round. It was submitted to the Canadian public for ratification in a referendum on 26 October 1992. It was rejected by voters in all but four provinces - one of which was New Brunswick - and one territory. The Charlottetown Accord was broader in scope than the Meech Lake

Accord and more complex. It also included major Senate reform provisions and sought to address Aboriginal peoples' self-government concerns.

The NBAHCC did not re-form to support or oppose the Charlottetown Accord.

Crocker recalls that most Canadians were weary of constitutional discussions, "but I think the whole country became cynical about this process. I mean, what the hell is going on here, I mean what is so bloody important about making Quebec feel good?"147

Max Wolfe concurred with Crocker's thoughts and added that he did not think the agreement would be successful from the outset, "I think there wasn't the same fire in people's bellies when it came to Charlottetown... You know - we've seen it all before and here we go again - but somehow I don't think I thought it would stand any chance of passing anyway."148 Despite the ambivalence of the NBAHCC towards the

Charlottetown Accord, it had a major effect on New Brunswick.

With the failure of the Meech Lake Accord, the New Brunswick Liberal Party was placed in a difficult position. Many of its members - including C. Anne Crocker and

Elaine Wright - had opposed the Accord. There were also Liberals and unaffiliated

147 C. Anne Crocker, interview with author, 22 March 2007. 148 Max Wolfe, interview with author, 5 April 2007.

155 voters who had voted for McKenna and who rejected the Accord because of personal anti-bilingualism or anti-Francophone sentiment. For example, Helen M. Beya of

Hampton, New Brunswick noted her disappointment with McKenna's performance at the Ottawa first ministers' conference: "[e]nclosed is my torn-up membership card in the

Liberal party[,] in future my vote will go now to the CoR party."149 Crocker recalls how dissatisfaction with McKenna's final Meech Lake gambit played into CoR hands.

"There was a fair bit of disaffection over Bill 88, [but] I think [CoR's success] scared

New Brunswickers... They said, 'oh my god, look what we've unleashed here.' We all

got our knickers in a twist and decided to teach Frank McKenna a lesson, and look what

we did."150 The language issues that propelled CoR to official opposition status in the

New Brunswick provincial election of 1991 went beyond the Meech Lake Accord. The

debate that arose over the entrenchment of Bill 88 as a pre-condition of the province's ratification of Meech Lake, however, helped raise the profile of linguistic issues in New

Brunswick. Ultimately, this aided CoR by highlighting the party's central issue.151

Bill 88 re-appeared in the Charlottetown Accord, again as a condition of the New

Brunswick government's approval of the agreement. Just as CoR had been staunchly

anti-Meech Lake, the party campaigned against the Charlottetown agreement in the

referendum campaign. McKenna viewed the referendum as a plebiscite on the

Helen M. Beya, letter to Frank McKenna, 10 June 1990, Frank McKenna Operational Records, Box 0- 90-7,2012-13, RS 738, PANB. A similar, but anonymous letter, dated 27 April 1990 and written on New Brunswick Liberal Party letterhead informed the Premier that he was, "GRANDSTANDING as the saviour of Canada, and pushing through a deal to make yourself look good, and forget that it is a poorly written and bad deal for Canada... I never thought I would say this, but if push comes to shove, I say let Quebec GO TO HELL." Annonymous, letter to Frank McKenna, 27 April 1990, Frank McKenna Operational Records, Box 0-90-7,2012-13, RS 738, PANB. 150 C. Anne Crocker, interview with author, 22 March 2007. 151BagloIe, 175.

156 entrenchment of Bill 88. While the Accord proved unpopular elsewhere, sixty-one per cent of New Brunswickers voted "yes."153 The federal and New Brunswick governments, using the referendum as justification, entrenched the principles of Bill 88 in the Constitution Act, 1982 on 12 March 1993.154 The issue of bilingualism was largely settled in the province. The loss of this issue, coupled with internal strife, led to the collapse of the CoR Party, which lost every seat it held in the Legislative Assembly in the next election, thus far never to return.155

The Charlottetown Accord, the response to the failure of the Meech Lake round, was the last attempt at mega-constitutional politics in Canada.156 To the present day, no government has dared to attempt amendment to the constitution for anything more than minor technical changes. Donald Dennison argues that the Meech Lake and

Charlottetown Accords demonstrated a fundamental weakness in the Canadian constitution: that while there is an amending formula, there is, as yet, no amending procedure}51 As a result, executive federalism and referenda have both been tried and have both failed. Alan C. Cairns argues that because of the years Canadians spent debating repatriation Canada has a constitutional immaturity unbefitting its status as one of the oldest, most stable systems of government in the world. He adds, "[w]e too-long avoided the basic question of where sovereignty resided by leaving, formally, large

131 Lee, 242. 153 Lee, 241-242. 154 Section 16.2, Constitution Act, 1982. Lee, 242. 155 Lee, 246. 156 Peter H. Russell, "The End of Mega Constitutional Politics in Canada?," PS: Political Science and Politics, 26.1 (March, 1993): 33-37. 157 Donald Dennison, "Two Steps Forward, One Step Sideways," unpublished paper, presented to the Saskatchewan Institute of Public Policy Conference, A Living Tree: The Legacy of 1982 in Canada's Political Evolution, Regina: 24 May 2007, 8. chunks of it in the Parliament of the former imperial mother country." Avoiding the question of where sovereignty was vested is symbolized in the tension Cairns' illustrated between the citizens' constitution (as embodied by the Charter of Rights and Freedoms) and the governments' constitution (as embodied by the amending formula). Thus the two constitutional rounds since repatriation have demonstrated the tension inherent in our present constitution. Both were unable to resolve this tension and both ended in failure.

Moreover, the surprise with which governments' greeted the outpouring of citizens' indignation at changes to their constitution symbolizes the lack of understanding between governments and citizens' groups.

The NBAHCC was one of many citizens' groups across Canada that worked to oppose the Meech Lake Accord. In the final sixteen months of its existence following the SCNBLA hearings, it continued its efforts to stop the ratification of the Accord by the New Brunswick government. The Committee fought to have a voice as political events on the national stage overtook the reach of citizens' groups. Building on the report of the SCNBLA, Frank McKenna finally articulated a firm position on the

Accord. The end of the committee stage and the move to firm policy in New Brunswick undermined the NBAHCC's ability to influence the political discourse on the Accord in the province. Part of the loss of the Committee's influence was the cooling of the relationship between it and the New Brunswick Liberal Party. Moreover, the

Committee's importance was, in part, based on the fact that it was the citizen's group dedicated solely to stopping the Accord in New Brunswick. The combination of the

McKenna government's increasingly pro-Meech stance and the change in Meech Lake

158 Alan C. Cairns, "The Charter, Interest Groups, Executive Federalism, and Constitutional Reform," in David E. Smith, Peter Mackinnon and John C. Courtney, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishing, 1991): 13-31,14.

158 policy in Manitoba and Newfoundland underscored the diminishing impact of the

NBAHCC's actions.

When the McKenna government ratified Meech Lake, the NBAHCC lost the battle to defeat the Accord in New Brunswick. Nevertheless, they played an important part in the war over Meech Lake, a war the opponents ultimately won. The lengthy

SCNBLA process was in part a result of the intense reaction on the part of New

Brunswickers to the Accord. That reaction, which was in large part stimulated by the

NBAHCC, held up the Accord's approval. As a result, by the time McKenna unveiled his companion resolution and "sold [the NBAHCC] down the river," both Manitoba and

Newfoundland had become a serious threat to the survival of the Accord.159

The Meech Lake Accord failed for many reasons. The debate over the Accord became increasingly emotional, particularly once anti-Francophone groups such as

APEC and CoR joined the political discourse. In the end, the Accord was stopped because of the actions of a single Manitoba ML A, Elijah Harper. A Cree, Harper was a member of one of the groups that was explicitly recognized by the Charter of Rights and

Freedoms. As such his actions can be seen as another part in the citizens' response to

Meech Lake, in which the NBAHCC played such an important part. The long-term effect of the Accord, apart from its failed successor the Charlottetown Accord and the eventual settlement of the Bill 88 question in New Brunswick, has been a retreat from mega-constitutional initiatives in Canada that persists to the present. The actions of the

NBAHCC, even as the group lost its ability to influence the New Brunswick government, continued to affect the course of the Accord up until its death on 23 June

1990.

159 C. Anne Crocker, interview with author, 22 March 2007.

159 Conclusion

The NBAHCC was one of many participants in a national debate that raged for three years. Once the question of free trade with the United States had been settled by the victory of the Progressive Conservative Party in the federal election of November 1988, the Meech Lake Accord came to almost totally dominate the national political agenda until its three year ratification window closed on 23 June 1990. It is impossible to say what the effects of the Accord might have been had it been adopted. The actual changes in wording to the Constitution Act, 1867 and Constitution Act, 1982 would not have really shown their effects until the courts were asked to rule on the actual power of the provisions. As John Saywell noted, regardless of what politicians-as-nation-builders might think their words will mean, ultimately "the law of the constitution is what the judicial lawmakers have said it is, and will be what they say it may be."1 What Supreme

Court justices might have done with the distinct society clause is anyone's guess. While it has been many years since Canada saw a mega-constitutional package of the scope of

Meech Lake, the issues that the Accord was meant to resolve remain part of the political landscape.

The distinct society clause, the focus of so much debate during the ratification period, still has the power to invoke strong opposition. Yet the Conservative government of Stephen Harper has gone even further symbolically, declaring in November 2006 by

John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002), 309.

160 Parliamentary motion that les Quebecois constitute a "nation" within Canada.2 This is far from a constitutionally entrenched recognition of the deux-nations theory of Canada, as most feel Meech Lake would have accomplished. It calls to mind the prophetic words of political commentator Dalton Camp, written in the midst of the Meech Lake debate:

"[T]here used to be argument, raging throughout Canada, about the propriety of some politicians... who would say, 'Quebec is not a province like the others.' Anyone who said that today would be put down as simple-minded; yesterday's heresy so soon becomes today's cliche. I expect to live long enough to see the day... when the phrase

'distinct society' will be considered innocuous."3 Meech Lake was only one attempt to accommodate Francophones and Anglophones within a single country. The preservation of the civil code and extending political rights to Roman Catholics in the Quebec Act,

1774, the compromise of a federal system contained in the British North America Act,

1867, the many proposals for repatriation of the constitution and the Meech Lake

Accord were all responses to the perennial challenge offered by the complexity of the

Canadian state.

The Meech Lake Accord is fascinating in part because of the role played by ordinary Canadians in a constitutional project that was to be realized through the strictest application of executive federalism. The NBAHCC - like many other citizens' groups across the country - decided to participate. They felt they had a rightful place at the table, regardless of whether or not they were invited, as the governments were making changes to their constitution. It is impossible to judge the impact of the NBAHCC's actions on the outcome of the Meech Lake Accord process, just as it is impossible to say

2 Tenille Bonoguore & Jeff Sallot, "Harper's Quebec motion passes easily," Globe and Mail, 27 November 2006. 3 Dalton Camp, Toronto Star, 28 February 1990, A23.

161 with certainty what effect the Meech Lake Accord would have had upon Canada had it been ratified. It is clear, however, that the actions of Canadian citizens set the Meech

Lake round apart from other constitutional exercises - including the repatriation round, where citizens' participation was limited to the discussion of the Charter of Rights and

Freedoms. The interaction between citizens' groups and government lies at the heart of the history of the Meech Lake Accord.

The tendency, however, has been to write accounts of the Meech Lake period from either of the two following perspectives. The first, and traditional approach, is to concentrate almost entirely on the governing elite who negotiated the Accord. Citizens' groups serve as - at best - as a distraction to which some of the politicians negotiating the accord fell victim or cynically manipulated in attempts to outmanoeuvre their political colleagues. Accounts of the Accord by Andrew Cohen and Patrick J. Monahan fit into this pattern.4 The second approach is to tell the story of the Accord entirely from the perspective of the citizens' groups that opposed it. In these accounts the governing elite that negotiated the Accord tend to be portrayed as insensitive and unresponsive.

The citizens' groups are cast in the role of David, taking on the Goliath-sponsored constitutional project of accommodating Quebec at the expense of the rights of everyday

Canadians. Given the symbolic importance of the rights contained in the Charter of

Rights and Freedoms, the government can even be seen as attempting to pull the rug out from under the victors of the repatriation round - those Canadians who finally achieved

4 Patrick J. Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991); Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Vancouver/Montreal: Douglas & Mclntyre, 1990).

162 constitutional recognition for their rights. Alexandra Dobrowolsky's account of the feminist challenge to the Accord fits this second pattern.5

This thesis has endeavoured to move beyond this bifurcation. The Meech Lake

Accord debate was the product of a rich discourse among many parties with different objectives and perspectives. Citizens' groups reacted to government actions and attempted to influence government policy. In the NBAHCC's case, the group also had a special relationship with the provincial government. Focusing on the history of one and not the other would provide an incomplete picture. This is especially true of New

Brunswick, where the provincial government maintained an ambiguous policy on the

Accord until early 1990. It makes little sense to cast the NBAHCC as fighting a hostile, pro-Meech government when, for the majority of the ratification period, the McKenna government's position can best be described as vaguely anti-Meech. Similarly, the actions of the New Brunswick government make little sense without a consideration of the enormous response from citizens' groups in the province to the Accord and their attempt to accommodate them.

It was easy to see the Meech Lake Accord in simple or symbolic terms. The

Accord was a complex package of amendments to the constitution, a document with which many Canadians had little familiarity. Groups like the NBAHCC, made up mostly of educated professionals and/or politically active people, had a fairly good handle on the issues at stake. Nevertheless, in order to raise awareness, their arguments also tended to the symbolic. The media, which was dominated by the drama of the Accord as the ratification deadline drew nearer, also attempted to educate Canadians on Meech Lake.

Alexandra Dobrowolsky, The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada (Don Mills: Oxford University Press, 2000).

163 Peter Mansbridge, who anchored the Canadian Broadcasting Corporation's coverage of the final first ministers' conference in June 1990, noted that the medium of television was a poor educator when it came to complex constitutional issues.6 It was all too easy

for the debate over the Accord to slip into a simplified dispute over symbols in which

neither side really understood the other. Ironically, in his summary of the Mont Gabriel

conference, political scientist Peter M. Leslie noted with concern the tendency for

attendees from Quebec to emphasize different aspects of the discussion than their

counterparts from the rest of Canada. Leslie worried that any serious constitutional

discussion might have Canadians talking past each other, engaging in what the

Quebecois call a dialogue de sourds.7

Regardless of the Accord's complexity, it was impossible to avoid. Political

scientist Peter Russell notes that mega-constitutional politics consume the affected

nation's attention, dominating the political agenda and pushing aside all other national

issues. The tremendous number of letters sent to Frank McKenna over the three years of

the Accord debate indicates that there was virtually no one who could resist becoming

concerned about Meech Lake by 1990. As an example of how far this concern

penetrated Canadian society, consider the following letter from Jennifer Butler of

Sussex, New Brunswick, to Premier McKenna:

Dear Mr. McKenna, Could you please tell me what the Meech Lake Accord is. I have asked my Mum and Dad, my Nanny and Grampy, but they do not understand it either. I am in grade five in Sussex Elementary School and when I

David Taras, "How Television Transformed the Meech Lake Negotiations," in David E. Smith, Peter Macinnon and John C. Courtney, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishing, 1991):169-180. Peter M. Leslie, Rebuilding The Relationship: Quebec And Its Confederation Partners/Une Collaboration Renouvelee: Le Quebec etses Partenaires dans la Confederation, Kingston: Institute of Intergovernmental Relations, Queen's University, 1987,22.

164 asked my teacher she said it would take too long to explain it. So will you please tell me what it means. I don't want Canada to break up!8 Young Ms. Butler's letter also indicates the degree to which Canadians were concerned about the future of their country. Despite the fact that the majority of Canadians outside

Quebec opposed the Accord, many worried that its failure would lead to Quebec's separation and possibly the dissolution of Canada. The strain on Canada was tremendous, but the wave of citizens' group protest that was unleashed could not be checked and enough citizens were determined to see the Accord fail, regardless of its consequences.

There is no question that constitution-making was changed forever by the Meech

Lake round. The changes became apparent with the next round, often referred to as the

"Canada round," from which the Charlottetown Accord emerged. That Accord was put to the Canadian people in a national referendum on 26 October 1992 and was rejected by voters in all but four provinces and one territory. The Charlottetown Accord was an even more complex agreement than Meech Lake and the reasons for its rejection are complex.

One likely reason, however, is that Canadians were tired of constitutional drama that seemed only to do more damage to confederation. As Russell writes, "I am afraid that by indulging in yet another round of constitutional politics we are more likely to tear our country apart than bind it more firmly together. Further, our absorption in constitutional politics will prevent us from tackling the serious economic and environmental problems that now confront Canada."9 Canadians were tired of mega-constitutional negotiations

Jennifer Butler, letter to Frank McKenna, May 26 1990, Frank McKenna Operational Records, Box 0- 90-7,2012-13, RS 738, PANB. 9 Peter H. Russell, "Commentary," in David E. Smith, Peter MacKinnon & John C. Courtney, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishers, 1991): 67-68,67.

165 that risked all and offered very little in return. They had become, in Russell's words,

"constitutional chickens."10

The women's movement also changed during the Meech Lake Accord period and in the years afterwards. The issues that dominated the agendas of feminist organizations such as NAC lost their appeal to a new generation of third wave feminists. Younger feminists were shifting the focus of women's organizations away from nation-building issues such as constitution-making and towards questions of policy concerning race, poverty and women in developing countries. As Jill Vickers, Pauline Rankin and

Christine Appelle write: "A heavy weighing of the newcomers' issues in the area of policy debate (prostitution, Third World women, lesbian issues, visible minority issues, violence, midwifery, anti-racism, AIDS)... the struggle to gain time, space, and money on the executive's agenda for the new issues often meant challenging the centrality of

NAC's responses to government initiatives in favour of paying more attention to long- term equality issues."11 There is no question that women continued to fight for their causes, but the subject matter tended to change.

C. Anne Crocker and Gayle MacDonald both feel that activism has changed in the Fredericton area as well. There is no question that individuals remain dedicated, but the focus of their protest has changed. MacDonald notes that her students at St. Thomas

University in Fredericton are more interested in international issues, but also more cynical about the domestic political process, "I think people are more global in their concerns now. I take my cues from my students. My students are either completely apathetic or they're activists... They show up at G7 meetings, and they're trained... I

10 Russell, 67. 11 Jill Vickers, Pauline Rankin & Christine Appelle, Politics as if Women Mattered: A Political Analysis of the National Action Committee on the Status of Women (Toronto: University of Toronto Press, 1993), 230.

166 think younger people are highly cynical about the political process, as are women. It's a joke among women, would you run for office? Have you been asked? Have you? Oh yeah, forget it."12 Crocker feels that the process the NBAHCC used - organizing an ad hoc committee around a specific issue and lobbying the government through official channels, such as appearing before legislative committees - is less common today. "I do

[think that the culture of political participation has changed]. That may be my ignorance too... And it could be that the issues that people are coalescing around now are issues that aren't much interest to me."13 She also feels that the type of people who were part of the NBAHCC, people active in the mainstream political parties and often of the professional classes, are now less likely to participate in similar political efforts.

Perhaps the most lasting result of the Meech Lake Accord experience was a feeling of empowerment for many Canadians who participated in groups like the

NBAHCC. Citizens' groups pressured governments into holding committee hearings that delayed the Accord. They supported premiers who demanded changes to the agreement, like Frank McKenna and Clyde Wells. They presented thousands of briefs in appearances before committees examining the Accord in New Brunswick, Manitoba,

Ontario and on Parliament hill. The change in Canadians' political expectations had been reinforced by the consultative process surrounding the Charter of Rights and

Freedoms and related to constitution-making in a way that had never happened before.

The Charter experience, including the "taking of twenty-eight," crystallized new expectations for future rounds of constitutional negotiation. In 1987, when the Meech

Lake Accord was negotiated, Canada's political elite failed to understand this change in

12 Gayle MacDonald, interview with author, 11 June 2007. 13 C. Anne Crocker, interview with author, 22 March 2007.

167 expectations. Similarly, citizens' groups failed to realize that their governments' felt little or no obligation to consult on constitutional matters agreed upon via executive federalism.

The lack of understanding resulted in the tidal wave of citizens' group opposition to Meech Lake. The deferent political culture that had allowed sweeping constitutional negotiations to be carried out in secret throughout the twentieth century was gone. It had been replaced by a concerned citizenry armed with the power of the Charter of Rights and Freedoms. The NBAHCC was not prepared to sit by and let governments amend the people's constitution. The fact that the Meech Lake Accord was never ratified enforced the new constitutional understanding. Executive federalism, regardless of its effectiveness or political expediency, had been stripped of its legitimacy. The NBAHCC members, drawing on the political lessons of the woman's movement, had helped to affect great constitutional change. Crocker reflected that this change seemed applicable to any political issue, not just the constitution. Canadians, as the Meech Lake experience proved, were empowered:

If you feel strongly about something and are prepared to use the political process you can have an impact on your community. Whether it's your neighbourhood, your town, your province, your country, you can have an impact... It's easy to sit back and complain and say, well, why are they doing that, or I don't agree with this, that, or the other, but if it's really important, and you decide you're going to do something about it, you can do it. You might not always get everything you want, but you can at least get out there and be heard... You can get like-minded people together to make a presentation to government... all you have to do is to want to do it enough... I don't feel

168 powerless as a citizen. And if something is important enough, then I know that I can do something about it."14

14 C. Anne Crocker, interview with author, 22 March 2007.

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Johnston, Wendy & Goguen, Nadine, eds. 2(fh Anniversary Scrapbok, Moncton: New Brunswick Advisory Council on the Status of Women, 1997.

174 Kernerman, G. & Resnick, P., eds. Insiders and Outsiders: Alan Cairns and the Reshaping of Canadian Citizenship, UBC Press: Vancouver, 2005.

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Leslie, Peter M. Rebuilding The Relationship: Quebec And Its Confederation Partners/ Une Collaboration Renouvelee: Le Quebec et ses Partenaires dans la Confederation, Kingston: Institute of Intergovernmental Relations, Queen's University, 1987.

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New Brunswick Advisory Council on the Status of Women, Growing Up Female in New Brunswick: 1970-2000, Fredericton: New Brunswick Advisory Council on the Status of Women, 2001.

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Does Canada Matter? The 1990 Kenneth R. MacGregor Lecture, Kingston: Institute of Intergovernmental Relations, Queen's University, 1990.

175 Romanow, Roy, Whyte, John & Leeson, Howard. Canada... Notwithstanding: The Making of the Constitution, 1976-1982, Toronto: Carswell/Methuen, 1984.

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Russell, Peter H. "The End of Mega Constitutional Politics in Canada?," PS: Political Science and Politics, 26.1 (March 1993): 33-37.

Strong-Boag, Veronica. "Presidential Address: Contested Space: The Politics of Canadian Memory," Journal of the Canadian Historical Association, 5.1 (1994): 3-18.

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178 Interviews

Barry, Jane. 2007. Interview with author. Saint John, New Brunswick, May, 29; June, 5.*

Crocker, C. Anne. 2007. Interview with author. Fredericton, New Brunswick, March, 22.

Dennison, Donald. 2007. Interview with author. Fredericton, New Brunswick, July, 11.

MacDonald, Gayle. 2007. Interview with author. Fredericton, New Brunswick, April, 19; June, 11.

Patterson, Stephen E. 2007. Interview with author. Fredericton, New Brunswick, July, 16.

Toole, Barry. 2007. Interview with author. Fredericton, New Brunswick, April, 18; June, 5.

Wolfe, Max. 2007. Interview with author. St. Andrews-by-the-Sea, New Brunswick, April, 5.

Wolfe, Willi Evans. 2007. Interview with author. St. Andrews-by-the-Sea, New Brunswick, April, 5.

*By correspondence Appendix A

List of Submissions to the SCNBLA1

APPENDIX F SUBMISSIONS TO SELECT COMMITTEE ON THE 1987 CONSTITUTIONAL ACCORD

1 New Brunswick, Select Committee on the 1987 Constitutional Accord: Final Report on the Constitutional Amendment, 1987 (Fredericton: Supply and Services, 1989).

180 MEECHLAKE ACCORD ISSUES RESPONSES OF BRIEFS

SUBMISSIONS

INVITED WITNESSES

Mr. Michel Bastarache, Ottawa [29 September 1988]

Senator Gerald Beaudoin, Quebec [29 September 1988]

Dr. Mary Eberts, Toronto [30 September 1988]

Dr. Peter Hogg, Toronto [20 October 1988]

Dr. John Whyte, Kingston [20 October 1988]

Dr. Eugene Forsey, Ottawa [20 October 1988]

APPEARING I - INDIVIDUALS

Mr. Sid Pobihushchy and Mr. J. G. Allen, Fredericton Feb 1

Mr. John Armstrong, Fredericton Feb 16

Mr David J. Baugh, Antigonish, Nova Scotia Feb 8

Mr. Marc Beaulieu, Moncton Jan 26

Mr. B. Richard Bell, Fredericton Feb 15

Mr. S. B. Benton, Oromocto Feb 1

Mr. William Chahley, Fredericton Jan 25

Mr. David Christie, Amherst, Nova Scotia Feb 2

Mr. Guy Clavette, Petit Rocher Jan 25

Mr. Harry Colwell, Saint John Feb 8

181 Mr. Albert Comeau, Saint John Jan 26

Dr. Brian Lee Crowley, Nova Scotia Jan 26

Mr. Luc Desjardins, Moncton Feb 16

Mr. G. M. Keith Dow, Saint John, Saint John Feb 8

Mr. John Grant Elliott, Nova Scotia Feb 2

Ms. Doreen Fraser, Fredericton Febl

Mr. Chris Gillis, Moncton Feb 2

Mr. Bev Harrison, Saint John Febl

Mr. Richard B. Hatfield, Fredericton Feb 16

Mr. Stewart Hyson, Saint John Feb 16

Mr. Cameron N. King, Fredericton Feb 15

Mr. Patrick Kutney, Toronto Feb 16

Mr. A. B. LaBerge, Newcastle Feb 16

Mr. John B. Labossiere, Rexton, N.B. Jan 26

Mr. Don Lawson, Saint John Febl

Mr. Robert Leger, Fredericton Jan 26

Mr. D. P. Mersereau, Fredericton Feb 15

Mr. Kenneth Moore, Fredericton Feb 8

Professor Stephen E. Patterson, Fredericton Feb 15

Mr. Shawn Perry, Fredericton Feb 16

Mr. Wilmot F. Ross, Fredericton Feb 2

Mr. William Sawdon, Sackville Feb 8

Dr. Bryan Schwartz, Winnipeg Febl

Mr. Ray W. Steeves, Salisbury Jan 26 Mr. Barry Toole, Fredericton Feb 15

Hon. Bernard Valcourt, Edmundston Feb 15

Mr. John E. Vallillee, Grand Falls Feb 16

Mr. Jacques V. Vincent, Fredericton Feb 1

Ms. Colleen L. Wilson, Winnipeg Feb 9

Mr. Max Wolfe, Jemseg Feb 9

II GROUPS

A-ABORIGINALS

Native Council of Canada Feb 9

New Brunswick Aboriginal Peoples Council Jan 25

Wolastokwik Negoot-Gook Feb 9

B - COMMERCIAL

Association des pecheurs professionals acadien, inc. Jan 25

Assomption compagnie mutuelle d'assurance-vie Feb 2

La Chambre de commerce de Caraquet Feb 16

Mouvement cooperatif acadien Feb 9

The New Brunswick Fish Packers' Association Jan 25

C- COMMUNITY SERVICES

Canadian Council on Social Development Feb 1

Canadian Mental Health Association Jan 26

Chapitre des infirmiers et infirmieres de la Peninsule acadienne Feb 2

Christian Reformed Churches in N.B. Jan 26

L'Association des travailleurs accidentes de la Peninsule, inc. Feb 2 N.B. Catholic Health Association Feb 9

New Brunswick Association of Social Workers Jan 26

Nurses Association of New Brunswick Feb 1

Premier's Council on the Status of Disabled Persons Jan 26

D-EDUCATIONAL

Association des conseillers scolaires francophones du Nouveau-Brunswick Jan 25

Conseil scolaire Boishebert, district scolaire 53 Jan 26

District scolaire 32 Feb 8

Federation des etudiants de l'universite de Moncton, inc. Feb 2

Quebec Federation of Home and School Associations Feb 9

F- MULTICULTURAL

Canadian Ethno-Cultural Council Feb 8

Canadian Jewish Congress Feb 8

New Brunswick Multicultural Council Feb 1

F- GOVERNMENT AND POLITICAL PARTIES

Canada Party of New Brunswick Feb 16

Fredericton South Liberal Association Feb 15

Government of the Yukon Feb 9

Le Village de Bas-Caraquet Jan 25

Members of Executive Council & Legislative Assembly of Northwest Territories Jan 26

Moncton West Liberal Association Feb 2

New Democratic Party Feb 15

Quebec Liberal Party Feb 8

Ville de Caraquet Feb 16 Village de Petit Rocher Jan 25

G - WOMEN

Association des femmes collaboratrices francophones du Nouveau-Brunswick

Association nationale de la femme et le droit Feb 2

Business and Professional Women's Club of New Brunswick Jan 25

Canadian Federation of University Women Feb 16

Cercle des dames d'Acadie de Dieppe Feb 2

Cercle des dames d'Acadie de Moncton Feb 8

Cercle des dames d'Acadie de Shippagan Jan 25

Federation des dames d'Acadie Feb 9

Fredericton University Women's Club Feb 2

Jemseg Women's Institute Feb 9

La Federation des dames d'Acadie, inc. (Zone F) Feb 15

Le Reseau national de Taction education femme Feb 8

N. B. Native Indian Women's Council, Inc. Feb 15

New Brunswick Women's Institute Feb 2

H- YOUTH

Federation des jeunes Feb 8

N.B. Advisory Council on the Status of Women [sic] Jan 25

Youth Council of New Brunswick Feb 2

/ - LINGUISTIC LOBBIES

Alliance Quebec Feb 8

Association des juristes d'expression francaise du Nouveau-Brunswick Jan 25

Canadian Parents for French Jan 26 Conseil de promotion et de diffusion de la culture (CPDC) Jan 26

Societe des acadiens et acadiennes du Nouveau-Brunswick Feb 1

Societe de la Grande Riviere Feb 9

J - LABOUR UNIONS

Association des enseignantes & enseignants francophones du Nouveau-Brunswick Feb

1

Canadian Brotherhood of Railway Transport & General Workers Union Feb 9

New Brunswick Federation of Labour Feb 1

New Brunswick Government Employees Union Feb 8

New Brunswick Nurses Union Jan 25

K- CONSTITUTIONAL LOBBIES

N.B. Ad Hoc Committee on the Constitution, Fredericton Chapter Feb 15

NOT APPEARING - INDIVIDUALS

I. H. Asper, Winnipeg

Mr. John Barry, Saint John

Mr. Gerald Beaulieu, Moncton

J. P. Bourque, Moncton

Mr. Russell D. F. Bowes, Dorchester

R. B. Bowser, Moncton

Mr. Murray L. Carpenter, Rothesay

Mr. Richard S. Carpenter, Moncton

Ms. Florence A. Cass, Saint John

186 Mr. Martin Cass, Saint John

Mr. Amedee J. Cormier, St. Andrews

Mr. William A. Craig, Saint John

Mr. F. P. Flanagan, Saint John

Ms. Judith A. Glennie, Saint John

Ms. Doris Hamer, Riverview

Mr. Charles W. Hanscome, Cross Creek

P. Issaak, et al, Toronto

Hon. Cam Jackson, M.P.P., Ontario

Mr. Michael A. Jaeger, Cambridge, Ontario

A. W. Johnson, Toronto

Ms. Mary F. Keith, Saint John

Ms. Eleanor Kelly, Saint John

Mr. Guy LeBlanc, Saint Antoine

Ms. Millie LeBlanc, Moncton

Mr. Frank MacKinnon, Calgary

Mr. John P. McEvoy, Fredericton

Mr. John George McGinty, Elgin

Mr. R. D. Oiling, St. Catherine, Ontario

Mr. Jean L. Pedneault, Edmundston

Mr. Gerald M. Price, Moncton

Mr. Barry Roderick, Saint John

Mr. Frank A. Rodgers, Saint John

Ms. Patricia Ruthven, Mississauga, Ontario Martin Shulman, et al, Toronto

Mr. Theophane Theriault, Petit Rocher

Mr. G. L. Wyborn, Quispamsis

NOT APPEARING - GROUPS

A-ABORIGINALS

National Indian Brotherhood/ Assembly of First Nations

B - COMMERCIAL

Conseil economique du Nouveau-Brunswick, inc.

C - COMMUNITY SERVICES

Nil

D-EDUCATIONAL

A Group of Northern N.B. University Students

Canadian Association of Law Teachers

Conseil scolaire #13, Shediac

E - MULTICULTURAL

German-Canadian Congress

National Association of Canadians of Origins in India

National Congress of Italian Canadians

Women Working with Immigrant Women of New Brunswick

F- GOVERNMENT & POLITICAL PARTIES

Christian Heritage Party of Canada

Hon. Lowell Murray, Government of Canada

Village de/of Clair Village de Saint-Francois

G-WOMEN

Canadian Voice of Women for Peace, Fredericton Branch

L'Institut feminin francophone du Nouveau-Brunswick

Institut feminin de Grande-Digue

Institut feminin regional de Madawaska

Institut feminin de Pont Landry

Institut feminin de Maisonnette

Institut feminin de St. Isidore

Institut feminin de Tracadie

Institut feminin de Saint-Francois

Institut feminin de St-Leonard Parent

Institut feminin de Bas Neguac

Institut feminin de Paquetville

New Brunswick Women's Network

The Saint John University Women's Club

University Women's Club of Moncton

H- YOUTH

La Federation des scouts de 1'Atlantique

I - LINGUISTIC LOBBIES

Coalition of Canadian Quebecers

La Societe Pierre-Amand-Landry

New Brunswick English Speaking Canadians

Townshippers Association K- CONSTITUTIONAL LOBBIES

Association of Liberals for the Amendment and Reform of Meech

Keith Banting, et al

Canadian Coalition on the Constitution

Canadian Right and Liberties Association

Moncton Ad Hoc Committee on the Constitution

Saint John Ad Hoc Committee on the Constitution Appendix B

Meech Lake (First Ministers') Communique

The Meech Lake Communique 30 April 1987

At their meeting today at Meech Lake, the Prime Minister and the ten premiers agreed to ask officials to transform into a constitutional text the agreement in principle found in the attached document. First ministers also agreed to hold a constitutional conference within weeks to approve a formal text to allow Quebec to resume its place as a full participant in Canada's constitutional development.

Quebec's Distinct Society

1) The Constitution of Canada shall be interpreted in a manner consistent with a) the recognition that the existence of French-speaking Canada, centred in but not limited to Quebec, and English-speaking Canada, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada; and b) the recognition that Quebec constitutes within Canada a distinct society.

2) Parliament and the provincial legislatures, in the exercise of their respective powers, are committed to preserving the fundamental characteristic of Canada referred to in paragraph (1) (a).

3) The role of the legislature and Government of Quebec to preserve and promote the distinct identity of Quebec referred to in paragraph (1) (b) is affirmed.

Immigration

- Provide under the Constitution that the Government of Canada shall negotiate an immigration agreement appropriate to the needs and circumstances of a province that so requests and that, once concluded, the agreement may be entrenched at the request of the province;

- such agreements must recognize the federal government's power to set national standards and objectives relating to immigration, such as the ability to determine general categories of immigrants, to establish overall levels of immigration and prescribe categories of inadmissible persons;

- under the foregoing provisions, conclude in the first instance an agreement in Quebec that would: • incorporate the principles of the Cullen-Couture Agreement on the selection abroad and in Canada of independent immigrants, visitors for medical treatment,

191 students and temporary workers, and on the selection of refugees abroad and economic criteria for family reunification and assisted relatives; • guarantee that Quebec will receive a number of immigrants, including refugees, within the annual total established by the federal government for all of Canada, with the right to exceed that figure by 5% for demographic reasons; and • provide an undertaking by Canada to withdraw services (except citizenship services) for the reception and integration (including linguistic and cultural) of all foreign nations wishing to settle in Quebec where services are to be provided by Quebec, with such withdrawal to be accompanied by reasonable compensation; - nothing in the foregoing should be construed as preventing the negotiation of similar agreements with other provinces.

Supreme Court/Canada

- Entrench the Supreme Court and the requirement that at least three of the nine justices appointed from the civil bar; - provide that, where there is a vacancy on the Supreme Court, the federal government shall appoint a person from a list of candidates proposed by the provinces and who is acceptable to the federal government.

Spending Power

- Stipulate that Canada must provide reasonable compensation to any province that does not participate in a future national shared-cost program in an area of exclusive provincial jurisdiction if that province undertakes its own initiative n programs compatible with national objectives.

Amending Formula

- Maintain the current general amending formula set out in section 38, which requires that consent of Parliament and at least two-thirds of the provinces representing at least fifty percent of the population; - guarantee reasonable compensation in all cases where a province opts out of an amendment transferring provincial jurisdiction to Parliament; - because opting out of constitutional amendments to matters set out in section 42 of the Constitution Act, 1982 is not possible, require the consent of Parliament and all the provinces for such amendments.

Second Round

- Require that a First Ministers' Conference on the Constitution be held not less than once per year and that the first be held within twelve months of a proclamation of this amendment but not later than the end of 1988; - entrench in the Constitution the following items on the agenda: 1) Senate reform including: -the functions and role of the Senate

192 -the powers of the Senate -the method of selection of Senators -the distribution of Senate seats

2) fisheries roles and responsibilities; and

3) other agreed upon matters

- entrench in the Constitution the annual First Ministers' Conference on the Economy now held under the terms of the February 1985 Memorandum of Agreement; - until constitutional amendments regarding the Senate are accomplished the federal government shall appoint persons from lists of candidates provided by provinces where vacancies occur and who are acceptable to the federal government.

193 Appendix C

Motion for a Resolution

Motion for a Resolution to Authorize an Amendment to the Constitution of Canada

WHEREAS the Constitution Act, 1982 came into force on April 17,1982, following an agreement between Canada and the provinces except Quebec;

AND WHEREAS the Government of Quebec has established a set of five proposals for constitutional change and has stated that amendments to give effect to those proposals would enable Quebec to resume a full role in the constitutional councils of Canada;

AND WHEREAS the amendment proposed in the schedule hereto sets out the basis on which Quebec's five constitutional proposals may be met;

AND WHEREAS the amendment proposed in the schedule hereto also recognizes the principles of equality of all the provinces, provides new arrangements to foster greater harmony and cooperation between the Government of Canada and the governments of the provinces and requires that conferences be convened to consider important constitutional, economic and other issues;

AND WHEREAS certain portions of the amendment proposed in the schedule hereto relate to matters referred to in section 41 of the Constitution Action, 1982;

AND WHEREAS section 41 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and the House of Commons and of the legislative assembly of each province;

NOW THEREFORE the (Senate) (House of Commons) (legislative assembly) resolves that an amendment to Constitution of Canada be authorized to be made by proclamation issued by Her Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.

194 Appendix D

Schedule, Constitution Amendment, 1987

Schedule - Constitutional Amendment, 1987

Constitution Act, 1867

1. The Constitution Act, 1867 is amended by adding thereto, immediately after section 1 thereof, the following section:

2. (1) The Constitution of Canada shall be interpreted in a manner consistent with

(a) the recognition that the existence of French-speaking Canadians, centered in Quebec but also present elsewhere in Canada,and English-speaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada; and

(b) the recognition that Quebec constitutes within Canada a distinct society.

(2) The role of the Parliament of Canada and the provincial legislatures to preserve the fundamental characteristic of Canada referred to in paragraph (1) (a) is affirmed

(3) The role of the legislature and Government of Quebec to preserve and promote the distinct identity of Quebec referred to in paragraph (l)(b) is affirmed.

(4) Nothing in this section derogates from the powers, rights or privileges of Parliament or the Government of Canada, or of the legislatures or governments of the provinces, including any powers, rights or privileges relating to language.

2. The said Act is further amended by adding thereto, immediately after section 24 thereof, the following section:

25. (1) Where a vacancy occurs in the Senate, the government of the province to which the vacancy relates may, in relation to that vacancy, submit to the Queen's Privy Council for Canada the names of persons who may be summoned to the senate.

(2) Until an amendment to the Constitution of Canada is made in relation to the Senate pursuant to section 41 of the Constitution Act, 1982, the person summoned to fill a vacancy in the Senate shall be chosen from among persons whose names have been submitted under subsection (1) by the government of the province to which the vacancy relates and must be acceptable to the Queen's Privy Council for Canada.

3. The said Act is further amended by adding thereto, immediately after section 95 thereof, the following heading and sections:

195 Agreements on Immigration and Aliens

95 A. The Government of Canada shall, at the request of the government of any province, negotiate with the government of that province for the purpose of concluding an agreement relating to immigration or the temporary admission of aliens into that province that is appropriate to the needs and circumstances of that province.

95B. (1) Any agreement concluded between Canada and a province in relation to immigration or the temporary admission of aliens into that province has the force of law from the time it is declared to do so in accordance with subsection 95C (1) and shall from that time have effect notwithstanding class 25 of section 91 or section 95.

(2) An agreement that has the force of law under subsection (1) shall have effect only so long as and so far as it is not repugnant to any provision of an Act of the Parliament of Canada that sets national standards and objectives relating to immigration or aliens, including any provision that establishes general classes of immigrants or relates to levels of immigration for Canada or that prescribes classes of individuals who are inadmissible into Canada.

(3) The Canadian Charter of Rights and Freedoms applies in respect of any agreement that has the force of law under subsection (1) and in respect of anything done by the Parliament or Government of Canada, or the legislature or government or a province, pursuant to any such agreement.

95C. (1) A declaration that an agreement referred to in subsection 95B (1) has the force of law may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is party to the agreement.

(2) An amendment to an agreement referred to in subsection 95B (1) may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized

(a) by resolutions of the Senate and House of Commons and of the legislative assembly of the province that is party to the agreement; or

(b) in such other manner as is set out in the agreement.

95D. Sections 46 to 48 of the Constitution Act, 1982 apply, with such modifications as the circumstances require, in respect of any declaration made pursuant to subsection 95C (1), any amendment to an agreement made pursuant to subsection 95C (2) or any amendment made pursuant to section 95E.

95E. An amendment to sections 95 A to 95D of this section may be made in accordance with the procedure set out in subsection 38(1) of the Constitution Act, 1982, but only if the amendment is authorized by resolutions of the legislative assemblies of all the

196 provinces that are, at the time of the amendment, parties to an agreement that has the force of law under subsection 95B(1).

4. The said Act is further amended by adding thereto, immediately preceding section 96 thereof, the following heading:

General

5. The said Act is further amended by adding thereto, immediately preceding section 101 thereof, the following heading:

Courts Established by the Parliament of Canada

6. The said Act is further amended by adding thereto, immediately after section 101 thereof, the following heading and sections:

Supreme Court of Canada

101 A. (1) The court existing under the name of the Supreme Court of Canada is hereby continued as the general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada, and shall continue to be a superior court of record.

(2) The Supreme Court of Canada shall consist of a chief justice to be called the Chief Justice of Canada and eight other judges, who shall be appointed by the Governor General in Council by letters patent under the Great Seal.

101B. (1) Any person may be appointed a judge of the Supreme Court of Canada who after having admitted to the bar of any province or territory, has, for a total of at least ten years, been a judge of any courts in Canada or a member of the bar of any province or territory.

(2) At least three judge of the Supreme Court of Canada shall be appointed from among persons who, after having been admitted to the bar of Quebec, have, for a total of at least ten years, been judges of any court of Quebec or of any court established by the Parliament of Canada, or members of the bar of Quebec.

101C. (1) Where a vacancy occurs in the Supreme Court of Canada, the government of each province may, in relation to that vacancy, submit to the Minister of Justice of Canada the names of any of the persons who have been admitted to the bar of the province and are qualified under section 101B for appointment to that Court.

(2) Where an appointment is made to the Supreme Court of Canada, the Governor General in Council shall, except where the Chief Justice is appointed from among members of the Court, appoint a person whose name has been submitted under subsection (1) and who is acceptable to the Queen's Privy Council for Canada.

197 (3) Where an appointment is made in accordance with subsection (2) of any of the three judges necessary to meet the requirement set out in subsection 101B(2), the Governor General in Council shall appoint a person whose name has been submitted by the Government of Quebec.

(4) Where an appointment is made in accordance with subsection (2) otherwise than as required under subsection (3), the Governor General in Council shall appoint a person whose name has been submitted by the government of a province other than Quebec.

10 ID. Sections 99 and 100 apply in respect of judges of the Supreme Court of Canada.

10IE. (1) Sections lOlAto 101D shall not be construed as abrogating or derogating from the powers of Parliament to make laws under section 101 except to the extent that such laws are inconsistent with those sections.

(2) For greater certainty, section 101A shall not be construed as abrogating or derogating from the powers of the Parliament of Canada to make laws relating to the reference of questions of law or fact, or any other matters, to the Supreme Court of Canada.

7. The said Act is further amended by adding thereto, immediately after section 106 thereof, the following section:

106A. (1) The Government of Canada shall provide reasonable compensation to the government of a province that chooses not to participate in a national shared cost program that is established by the Government of Canada after the coming force of this section in an area of exclusive provincial jurisdiction, if the province carries on a program or initiative that is compatible with the national objectives.

(2) Nothing in this section extends the legislative powers of the Parliament of Canada or of the legislatures of the provinces.

8. The said Act is further amended by adding thereto the following heading and sections:

XII - Conferences on the Economy and other Matters

148. A Conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once each year to discuss the state of the Canadian economy and such other matters as may be appropriate.

XIII - References

149. A reference to this Act shall be deemed include a reference to any amendments thereto.

Constitution Act, 1982

198 9. Sections 40 to 42 of the Constitution Act, 1982 are repealed and the following substituted therefor:

40. Where an amendment is made under subsection 38(1) that transfers legislative powers from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.

41. An amendment to the Constitution of Canada in relation to the following matters may be made proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

(b) the powers of the Senate and the method of selecting Senators;

(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

(d) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province was entitled to be represented on April 17, 1982;

(e) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;

(f) subject to section 43, the use of the English or French language;

(g) the Supreme Court of Canada;

(h) the extension of existing provinces into the territories;

(i) notwithstanding any other law or practice, the establishment of new provinces; and

(j) an amendment to this part.

10. Section 44 of the said Act is repealed and the following substituted therefor:

44. Subject to section 41, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

11. Subsection 46(1) of the said Act is repealed and the following substituted therefor:

199 46. (1) The procedures for amendment under sections 38, 41, and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.

12. Subsection 47(1) of the said Act is repealed and the following substituted therefor:

47. (1) An amendment to the Constitution of Canada made by proclamation under section 38, 41 or 43 may be made without a resolution of the Senate authorizing the issue if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing the issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

13. Part VI of the said Act is repealed and the following substituted therefor:

PART VI

Constitutional Conferences

50. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada at least once each year, commencing in 1988.

(2) The conferences convened under subsection (1) shall have included on their agenda the following matters:

(a) Senate reform, including the role and functions of the Senate, its powers, the method of selecting Senators and representation in the Senate;

(b) roles and responsibilities in relation to fisheries; and

(c) such other matters as are agreed upon.

14. Subsection 52(2) of the said Act is amended by striking out the word "and" at the end of paragraph (b) thereof, by adding the word "and" at the end of paragraph (c) thereof, and by adding thereto the following paragraph:

(d) any other amendment to the Constitution of Canada.

15. Section 61 of the said Act is repealed and the following substituted therefor:

61. A reference to the Constitution Act, 1982, or a reference to the Constitution Acts, 1867 to 1982, shall be deemed to include a reference to any amendments thereto.

General 16. Nothing in Section 2 of the Constitution Act, 1867 affects section 25 or 27 of the Canadian Charter of Rights and Freedoms, section 35 of the Constitution Act, 1982 or class 24 of section 91 of the Constitution Act, 1867.

Citation

17. This amendment may be cited as the Constitution Amendment, 1987. Appendix E

Communique, 1990 First Ministers' Meeting

Final Communique, First Ministers' Meeting on the Constitution, 9 June 1990

WHEREAS on April 20, 1987, the Prime Minister of Canada and the Premiers reached agreement in principle on means to bring about the full and active participation of Quebec in Canada's constitutional evolution. AND WHEREAS on June 2, 1987, all first ministers signed the 1987 Constitutional Accord and committed themselves to introducing as soon as possible the Constitutional Amendment, 1987 in Parliament and the provincial legislative assemblies; AND WHEREAS the Constitution Amendment, 1987 has been authorized by Parliament and the legislative assemblies of Quebec, Saskatchewan, Alberta, Prince Edward Island, Nova Scotia, Ontario and British Columbia:

1. THE MEECH LAKE ACCORD

The Premiers of New Brunswick, Manitoba and Newfoundland undertake to submit the Constitution Amendment, 1987 for appropriate legislative or public consideration and to use every possible effort to achieve decision prior to June 23,1990.

2. SENATE REFORM

After proclamation, the federal government and the provinces will constitute a commission with equal representation for each province and an appropriate number of territorial and federal representatives to conduct hearings and to report to Parliament and the legislative assemblies of the provinces and territories, prior to the First Ministers' Conference on the Senate to be held by the end of 1990 in British Columbia, on specific proposals for Senate reform that will give effect to the following objectives: - The Senate should be elected. -The Senate should provide for more equitable representation of the less populous provinces. -The Senate should have effective powers to ensure the interests of residents of the less populous provinces and territories figure ore prominently in national decision-making, reflect Canadian duality and strengthen the Government of Canada's capacity to govern on behalf of all citizens, while preserving the principle of responsible government in the House of Commons. Following proclamation, the Prime Minister and all Premiers agree to seek adoption of an amendment on comprehensive Senate reform consistent with these objectives by July 1, 1995. The Prime Minister undertakes to report semi-annually to the House of Commons on progress achieved towards comprehensive Senate reform. The Prime Minister and the Premiers, reaffirming the commitment made in the Edmonton Declaration and the provisions to be entrenched in the Constitution

202 Amendment, 1987, undertook that Senate reform will be the key constitutional priority until comprehensive reform is achieved. If, by July 1, 1995, comprehensive Senate reform had not been achieved according to the objectives set out above under section 41 of the Constitution Amendment, J987, the number of Senators by which a province is entitled to be represented in the Senate will be amended so that, of the total of one hundred and four Senators, the representation of Ontario will be eighteen Senators, the representation of Nova Scotia, New Brunswick, British Columbia, Alberta, Saskatchewan, Manitoba and Newfoundland will be eight Senators each, and the representation of all other provinces and the territories will remain unchanged. In the case of any province whose representation declined, no new appointments would be made until that province's representation had by attrition declined below its new maximum. In the event of such a redistribution of Senate seats, Newfoundland would be entitled to another Member of Parliament in the House of Commons under section 51A of the Constitution Act, 1867.

3. FURTHER CONSTITUTIONAL AMENDMENTS

(1) Charter - Sex Equality Rights -Add section 28 of the Canadian Charter of Rights and Freedoms to section 16 of the Constitution Amendment, 1987.

(2) Role of Territories -In appointments to the Senate and the Supreme Court of Canada. -In discussions on items on the agenda of annual constitutional and economic conferences where, in the view of the Prime Minister, matters to be discussed directly affect them.

(3) Language Rights -Add to the agenda of constitutional conferences matters that are of interest to English- speaking and French-speaking linguistic minorities. -Require resolutions of the House of Commons, the Senate and the legislative assembly of New Brunswick to amend that province's Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick (Bill 88).

(4) Aboriginal Constitutional Issues -First Ministers' constitutional conferences to be held once every three years, the first to be held within one year of proclamation; representatives of aboriginal peoples and the territorial governments to be invited by the Prime Minister to participate in the discussion of matters of interest to the aboriginal peoples of Canada. The Prime Minister of Canada will lay or cause to be laid before the Senate and the House of Commons, and the Premiers will lay or cause to be laid before their authorize a proclamation to be issued by the Governor General under the Great Seal of Canada to amend the Constitution of Canada as soon as possible after proclamation of the Constitutional Amendment, 1987.

4. AGENDA FOR FUTURE CONSTITUTIONAL DISCUSSIONS (1) Creation of New Provinces in the Territories The Prime Minister and all Premiers agreed future constitutional conferences hsould address available options for provincehood, including the possibility that, at the request of the Yukon and Northwest Territories to become provinces, only a resolution of the House of Commons and Senate be required.

(2) Constitutional Recognition The Prime Minister and Premiers took note of repeated attempts by First Ministers over the past twenty years to draft a statement of constitutional recognitions. All such attempts were unsuccessful. The Prime Minister and Premiers reviewed drafts submitted by the federal government and Manitoba, Saskatchewan, Ontario and British Columbia, and agreed to refer immediately the drafts to an all-party Special Committee of the House of Commons. Public hearings would begin across Canada on July 16,1990 and a report on the substance and placement of the clause - in a manner consistent with the Constitution of Canada - would be prepared for consideration by First Ministers at their Conference in 1990.

(3) Constitutional Reviews The Prime Minister and all the Premiers agreed jointly to review, at the constitutional conference required by section 49 of the Constitution Act, 1982, the entire process of amending the Constitution, including the three-year time limit under section 39(2) if that Act and the question of mandatory public hearings prior to adopting any measure related to a constitutional amendment, including constitutional resolution. Pursuant to section 50 of the Constitution Act, 1982, as proposed in the Constitution Amendment, 1987, the Prime Minister and the Premiers also committed to a continuing review of the operation of the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, with a view to making any appropriate constitutional amendments.

5. SECTION 2: CONSTITUIONAL AMENDMENT, 1987

The Prime Minister and Premiers took note of public discussion of the distinct society clause since its inclusion in the Meech Lake Accord. A number of Canada's most distinguished constitutional authorities met to exchange views on the legal impact of the clause. The Prime Minister and Premiers reviewed their advice and other material. The Prime Minister, in his capacity as chairman of the Conference, received from the above-noted constitutional authorities a legal opinion which is appended to the final Conference communique.

6. NEW BRUNSWICK AMENDMENT -Add a clause that within New Brunswick, the English linguistic community and the French linguistic community have equality of status and equal rights and privileges. -Affirm an additional role of the legislature and government of New Brunswick to preserve and promote the equality of status d equal rights and privileges of the province's two official linguistic communities.

204 The Prime Minister of Canada will lay or cause to be laid before the Senate and the House of Commons, and the Premier of New Brunswick will lay or cause to be laid before the legislative assembly of New Brunswick, a resolution, in the form appended hereto, and will seek to authorize a proclamation to be issued by the Governor General under the Great Seal of Canada to amend the Constitution of Canada as soon as possible after the proclamation of the Constitution Amendment, 1987.

205 Curriculum Vitae

Candidate's full name: Anthony Simon Constantine Hampton

Universities attended: Mount Allison University, Bachelor of Arts, 2005.

Publications: A Bibliography of At The Crossroads: A History ofSackville New

Brunswick (Tantramar Heritage Trust: 2005).