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The Meech Lake Accord Tulsa Law Review Volume 25 Issue 4 Symposium on Feminist Jurisprudence Summer 1990 Sex Equality and Nation-Building in Canada: The Meech Lake Accord Catharine A. MacKinnon Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Catharine A. MacKinnon, Sex Equality and Nation-Building in Canada: The Meech Lake Accord, 25 Tulsa L. J. 735 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol25/iss4/2 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. MacKinnon: Sex Equality and Nation-Building in Canada: The Meech Lake Accord SEX EQUALITY AND NATION-BUILDING IN CANADA: THE MEECH LAKE ACCORD* Catharine A. MacKinnont INTRODUCTION After successful agitation, Canadian women secured in Canada's new constitution, the Charter of Rights and Freedoms, sex equality guar- antees with more direct potential to produce actual sex equality than ex- ists in the constitutional language of any other democracy. These equality provisions, which came into effect in April 1985, prohibit dis- crimination on the basis of sex through law' and also expressly guarantee all Charter rights equally to "male and female persons."2 The first deci- sion under the broad equality rights provision, Law Society of British Co- lumbia v. Andrews,3 begins to deliver upon the promise of the Charter's language. It rejects the usual "similarly situated" approach, under which equality means treating likes alike and unlikes unalike, and embraces in- stead an approach the purpose of which is to rectify the systematic disad- vantage of historically subordinated groups. A defect in the 1982 compact which created the Charter was its lack of approval by Quebec. A long-term conflict exists in Canadian society * Copyright @ 1990 by Catharine A. MacKinnon. t Visiting Professor of Law, Yale Law School. 1. CAN. CONST. pt. 1, § 15 (he Canadian Charter of Rights and Freedoms). Section 15 provides that: (1) 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 or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Id. 2. CAN. CONST. pt. 1, § 28. Section 28 provides that: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female per- sons." Id. 3. [1989] 1 S.C.R. 143 (Can.). Published by TU Law Digital Commons, 1989 1 Tulsa Law Review, Vol. 25 [1989], Iss. 4, Art. 2 TULSA LA W JOURNAL [Vol. 25:735 between the English and French heritage, culture, language, and peoples. Francophones are in the minority except in Quebec; Anglophones domi- nate throughout Canada but are numerically a minority in Quebec. The cultural dignity and particularity of the French is not sufficiently respected by much of Anglo Canada, producing a wariness of the Char- ter as a possible device for imposing Anglo-Canadian values, culture, legal traditions, and language. At the same time, the nonacceptance of the Charter by Quebec leaves for many a legal and political gap, a sense in which the nation is not whole. Eleven men-ten Premiers and the Prime Minister-met in 1987 to attempt to devise terms for confederation acceptable to all. The Meech Lake Accord was the result. It provides for the recognition of Quebec as "a distinct society" within Canada4 and also reiterates the recognition of multicultural and aboriginal rights, thought in jeopardy without reaffirmation.' Women, including some in Quebec, reacted immediately to the lack of recognition of sex equality rights in the Accord. At the same time, any criticism of the Meech Lake Accord has often been taken as, and has often been, anti-French. As the debate has progressed, concerns with the Accord that nonetheless respect the French "distinct society" have been virtually drowned out by often vicious (and sometimes subtle but equally invidious) anti-French sentiment. It has become almost impossible to be heard as anything other than anti-Quebec when expressing reservations about the Accord. 4. The Meech Lake Accord is in the form of amendments to the Constitution Act, 1867 (Brit- ish North America Act, 1867, 30-31 Vict., ch. 3). The Accord includes a new section 2 of the Constitution Act as follows: (1) The Constitution of Canada shall be interpreted in a manner consistent with (a) the recognition that the existence of French-speaking Canadians, centred in Que- bec 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 (1)(b) is affirmed. (4) Nothing in this section derogates from the powers, rights or privileges of Parlia- ment or the Government of Canada, or of the legislatures or governments of the provinces, including any powers, rights or privileges relating to language. Id. 5. Section 16 of the Meech Lake Accord states: "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." The provisions re- ferred to in section 16 protect multicultural rights and the rights of aboriginal peoples. https://digitalcommons.law.utulsa.edu/tlr/vol25/iss4/2 2 MacKinnon: Sex Equality and Nation-Building in Canada: The Meech Lake Accord 1990] SEX EQUALITY AND NA TION-B UILDING June 23, 1990, was the deadline for ratification by the provinces. Two refused to ratify and one talked of rescinding, under rules that seem to require unanimity. The opposition of one Manitoba legislator, a Na- tive man, prevented its ratification conclusively. Failure of ratification leaves further negotiation of terms including possible companion resolu- tions, continued limbo, or the partial or complete separation of Quebec as among alternatives being actively discussed.6 The testimony below was given at the request of the Ontario Legis- lature at hearings on the Accord. When the Ontario Legislature ap- proved Meech Lake, women sang songs of protest in the gallery.7 Perhaps these reflections on the place of women in Canadian nation- building will apply in some ways to Eastern Europe, particularly in light of the internal ethnic tensions there. The argument is that national unifi- cation not be accomplished at women's expense. 8 TESTIMONY BEFORE THE LEGISLATIVE ASSEMBLY OF ONTARIO MR. CHAIRMAN: Good afternoon, ladies and gentlemen. We can begin our afternoon session. I would like to call upon our first witness for this afternoon, Professor Catharine MacKinnon, a constitutional law- yer and political scientist. She has taught at Yale, Harvard, Stanford, and most recently at the University of Chicago and Osgoode Hall. I understand that next fall you are going to be teaching constitu- tional law and sexual equality at Osgoode Hall. DR. MACKiNNON: Yes, I will. MR. CHAIRMAN: I am sure this whole topic is going to provide years of teaching material if one just looks at the testimony before our committee. I want to thank you very much for coming here this after- noon. I will let you go ahead with your presentation, following which we will go ahead with questions. DR. MACKINNON: Actually, the controversy on the Meech Lake Accord has provided me with, among other things, an in-depth, quick immersion in the law and politics of Canada. I am deeply honored to be 6. CanadianLeaderAppealsfor Calm on Quebec Dispute, N.Y. Times, June 23, 1990, at 1, col. 6 (nat'l ed.). Last-minute attempts to reach a compromise on the Accord failed, and the issues discussed in this Article remain unresolved. Id. 7. Spears, Peterson's Problems as Meech Pact Salesman, Toronto Star, July 2, 1988, at D5, cols. 1-4. 8. LEGISLATIVE ASSEMBLY OF ONTARIO, SELECT COMM. ON CONSTITUTIONAL REFORM, 1987 CONSTITUIONAL ACCORD, HANSARD OFFICIAL REP. OF DEB., 34th Pad., 1st Sess. C-1 162 to C-1 172 (Mar. 31, 1988). Footnotes are added here. Published by TU Law Digital Commons, 1989 3 Tulsa Law Review, Vol. 25 [1989], Iss. 4, Art. 2 TULSA LAW JOURNAL [Vol. 25:735 asked, as a citizen of the United States, to address this committee on this deeply Canadian issue. As an American constitutional lawyer and a political scientist work- ing internationally in the area of sex equality, I am going to offer for your consideration a comparative perspective on the potential impact of the Meech Lake Accord on women's equality. From my observations of the debate to date on the Accord, I have noticed that when women ask questions about the impact the Accord may have on their legal rights, they are reassured that the issues are not legal, but political. When they then ask questions about the impact of the Accord on their political status, they are reassured that the issues are legal and will be dealt with by the courts.
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