Osgoode Hall Law Journal Volume 29 Issue 3 Volume 29, Number 3 (Fall 1991) Article 3 7-1-1991 ...Meech Lake to the Contrary Notwithstanding (Part II) Roderick A. Macdonald Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons Article This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Macdonald, Roderick A.. "...Meech Lake to the Contrary Notwithstanding (Part II)." Osgoode Hall Law Journal 29.3 (1991) : 483-571. https://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss3/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. ...Meech Lake to the Contrary Notwithstanding (Part II) Abstract In this essay, which has been published in two parts, the author argues that the Meech Lake Accord was more than a hastily cobbled together political deal between the Prime Minister and ten provincial premiers. Despite the unattractive process by which the Meech Lake Accord was struck, and especially defended, despite the disingenuous character of the arguments most often advanced for its adoption, and despite its close connection with other aspects of the federal government's political agenda which many Canadians found suspicious, the Meech Lake Accord did respond to an important issue in post- patriation constitutionalism. A review of Canadian constitutional history, the evolution of French and English linguistic minorities in Canada, and the complementary motifs of French-Canadian and English- Canadian survivance leads the author to conclude that the forces which generated the Meech Lake Accord have been perennial features of "British North American" political life since 1759. The symbolic purpose of the Meech Lake Accord was to illustrate that, notwithstanding significant demographic and economic changes in Canada, and notwithstanding that the patriation exercise operated a profound transformation of the complex underpinnings of Canadian federalism, these traditional forces would still play a significant role in defining the aluesv of the country. The failure of the Meech Lake Accord does not mean that these forces are now spent. Rather, it means only that the present "federal" structure within which they have been accommodated since 1867 probably is no longer appropriate for the task. The author concludes with a prognosis for what the institutional redesign likely to emerge over the next few years will be - a framework he characterizes as "heteronomy." Keywords Meech Lake Accord (1987); Constitutional law; Canada Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss3/3 ...MEECH LAKE TO THE CONTRARY NOTWITHSTANDING (PART II)° RODERICK A. MACDONALD* In this essay, which has been published in two parts, the author argues that the Meech Lake Accord was more than a hastily cobbled together political deal between the Prime Minister and ten provincial premiers. Despite the unattractive process by which the Meech LakeAccord was struck, and especially defended, despite the disingenuous character of the arguments most often advanced for its adoption, and despite its close connection with other aspects of the federal government's political agenda which many Canadians found suspicious, the Meech Lake Accord did respond to an important issue in post-patriation constitutionalism. A review of Canadian constitutional history, the evolution of French and English linguistic minorities in Canada, and the comple- mentary motifs of French-Canadian and English-Canadian survivance leads the author to conclude that the forces which generated the Meech Lake Accord have been perennial features of "British North American" C Copyright, 1991, Roderick A. Macdonald Of the Faculty of Law and the Institute of Comparative Law, McGill University. Given that the entire essay is a revision of the Laskin Lecture on Public Law delivered on 8 November 1989, its organization and tone continue to reflect the argument in favour of the ratification of the Meech Lake Accord that was then made. Nevertheless, many of the points raised in this half of the essay have been rewritten into the past tense, even though they were, in fact, signalled prior to the failure of the Meech Lake Accord. On occasion this rewriting into the past tense causes me some embarrassment (in that the text is both more discursive and more polemical than would be appropriate in a footnoted essay published as a post-mortem), but I have decided to leave the text more or less as originally written. Where it has been necessary to rewrite parts of the essay to reflect the failure of the ratification process (which is especially the case in section VII - originally devoted to assessing various strategies for achieving ratification between 8 November 1989 and 23 June 1990), this rewriting is clearly indicated, and the original arguments are summarized in the footnotes. 1 Part I, comprising sections I - III, appears in (1991) 29 Osgoode Hall LJ. 253. Addendum to Part I: an important bibliographic source was omitted from footnote 92. R. Rudin, The Forgetten Quebecers: A History of English-Speaking Quebec, 1759-1980 (Quebec: Institut Qu~bdois de recherche sur la culture, 1985) provides a comprehensive account of the role and influence of Quebec's English-speaking population and provides detailed graphs and charts showing the demographic evolution of that minority. 484 OSGOODE HALL LAW JOURNAL [VOL. 29 NO. 3 political life since 1759. The symbolic purpose of the Meech LakeAccord was to illustrate that, notwithstanding significant demographic and economic changes in Canada, and notwithstanding that the patriation exercise operated a profound transformation of the complex under- pinnings of Canadian federalism, these traditional forces would still play a significant role in defining the values of the country. The failure of the Meech LakeAccord does not mean that these forces are now spent. Rather, it means only that the present "federal" structure within which they have been accomodated since 1867 probably is no longer appropriate for the task. The author concludes with a prognosis for what the institutional redesign likely to emerge over the next few years will be - a framework he characterizes as "heteronomy." IV. LA SURVIVANCE AND ITS IMPLICATIONS: CONSTITUTIONAL M OTIFS ................................................. 484 V. THE MEANING OF MEECH LAKE: CONSTITUTIONAL SYMBOLS ... 511 VI. BILL 178, THE SECTION 33 OVERRIDE, AND THE DISTINCT SOCIETY CLAUSE: CONSTITUTIONAL VISIONS ................. 524 VII. THE RATIFICATION IMPASSE: CONSTITUTIONAL MOMENTS ...... 546 VIII. CONCLUSION ............................................ 567 IV. LA SURVIVANCE AND ITS IMPLICATIONS: CONSTITUTIONAL MOTIFS In an ideal polity there would be few bigots and fewer xenophobes. People would rejoice in linguistic and cultural diversity.2 Members of majorities would even attempt, through their support of various cultural activities, to cross-subsidize minorities, rather than by their passivity, allow the reverse to occur. Policy- makers would be able to distinguish real threats to weaker cultures from harmless bogeymen, and having done so, would propound 2 For a superlative analysis of the difference between language and ethnicity, and the implications for political theory of recognizing the claims of "ethnicity," see W. Kymlicka, "Liberalism and the Politicization of Ethnicity" (Address to McGill University, October 1990) [unpublished paper on file with the author]. See also, for a more detailed treatment of these underlying themes, W. Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989) [hereinafter Liberalism]. 1991] ...Meech Lake (PartII) national motifs which call forth openness, not defensiveness. Most importantly, politicians would not seek to curry popular favour by simply refusing to carve out an identifiable position, or by playing to the fears and prejudices of their electorate. Such, however, is not the Canada within which we live today. Indeed, many popular movements and organizations - for example, the Alliance for the Preservation of English in Canada and the Confederation of Regions Party on the one hand, and Soci6t6 Saint- Jean-Baptiste and the Mouvement Qu6bec-Frangais on the other - seem to share an eagerness to uncover dark linguistic conspiracies and, by ricochet, promote ignorance and intolerance. Moreover, it is rare, even among those English-speaking Canadians outside Quebec of tolerance and good will, that the effort is made to support French-language endeavours in their communities; only a few regularly listen to or watch Radio-Canada, purchase records and books published in French, or attend concerts, movies, or exhibitions offered in that language, with the consequence that the market for the cultural products of Canada's minority official language remains perilously small. Finally, a disturbing number of politicians in both majority and minority language groups pursue formal rather than substantive legislative goals. In their quest, they typically seek to limit, control, and suppress perceived threats rather than to nurture or promote the threatened object. It is this last feature of Canadian political life,