Charlottetown Accord: The last constitutional supper – Part 3

Is Canada too old to talk foundations?

Nik Nanos was sent to jail in 1992.

The pollster and head of Nanos Research was then a PC Party supporter and leader of the Kingston and the Islands Canada Committee, and Kingston Penitentiary was in the constituency.

It was the first time prisoners had been given the vote1 and Federal Court [Belczowski, (1992) 2 F.C. 440]], thanks to two key court cases, and 188 institutions across Canada had inmates registered, and solicited for the Charlottetown Accord referendum.

“We had to organise a campaign for the prison population,” he recalls, “which had never been done in Kingston and the Islands. There were actual voting stations in Kingston Penn, for example.

“So that was a bit of a new area organisationally and from a campaign point of view. It was interesting that there was actually a lot of interest in the prison population on the Charlottetown Accord where they’d be asking for information.”

Prison voting was just one of many election changes brought in during the referendum.

The Elections Canada report on the vote outlines both the number of advancements, and the speed with which they were implemented.
Jean-Pierre Kingsley, the author of that report as then chief electoral officer, says accessibility for voters was a central plank of the campaign and Elections Canada’s work.

In 1991, the Royal Commission on Electoral Reform and Party Financing – known as the Lortie Commission2 – produced recommendations to make the system “user friendly”, says Mr Kingsley.

“Personally I think we even went beyond what the royal commission was talking about,” says the senior fellow at the University of Ottawa’s graduate school of public and international affairs. “In terms of true accessibility, in terms of really reaching out to the groups. Personally it was my mission – that’s the way I felt about it.

“If you’re going to take a job, you have to get to the bottom of why you’re doing it. And I wanted to do the best job that had ever been done.”

Elections Canada reached out to indigenous communities in dozens of languages and this continued in the years after along with liaison staff in 150 ridings.

Hundreds of ramps were built for polling stations – almost 400 of them permanent – at schools, churches and other public facilities, benefiting not just voters, but improving long-term access.

The referendum marked the first use of ECAPLE – Elections Canada Automated Preliminary List of Electors – the first permanent list of electors. Previous elections required new lists to be compiled at each vote. Mr Kingsley says the success in the 1992 referendum allowed him to convince parliament that a computerised list would save “$40-50 million at every election” by avoiding door-to-door enumeration, and shave 11 days off the electoral calendar.

But despite the drive for accessibility and modernising Canada’s voting system, around 10,000 voters were disenfranchised by being caught between two electoral stools. Residents of Quebec who had not yet lived in the province for six months couldn’t register to vote in either the Canadian referendum, nor in Quebec’s own version.

Mr Kingsley says, with obvious frustration even 20 years on, that he wanted to let these Canadians vote, but couldn’t.

“I wanted to let them vote, but I couldn’t, and the Supreme Court said I couldn’t,” he says3. “We had a whole campaign ready with ads that were going to go out. We were going to be hitting every newspaper and every means of communication to tell those Quebecers who had moved within the last six months in the province of Quebec, ‘This is how you register to vote’ and I was going to be counting them separately and I was going to be calling them something like, ‘Quebecers who had been less than six months in the province’ type of thing, so that they wouldn’t get mixed with the Ontario or New Brunswick [numbers].

“The whole plan was laid out that had reserved the space in newspapers, the whole bit. The Supreme Court said no. I agreed with them [the legal reasons], but it doesn’t remove the fact that I wanted to let them [the individuals] vote.

“As the chief electoral officer, nothing bothered me more that when I knew that a Canadian could not vote, whether in a general election or whatever. Even if the law said they could not vote, and I had to uphold that, it bothered me. Because the whole purpose of an election, of a referendum, is to get as many people who want to express themselves to express themselves.

“That is what you try to achieve with an electoral democracy. There are enough compromises in the system already, in terms of how we’re represented, so on and so forth, that you don’t want the electoral system itself to be the means whereby people are deprived of their right. It’s a fundamental right.”

Mr Kingsley said he tried to reach out to the chief electoral officer of Quebec at the time, but there was “a definite ‘not interested’ response”.
Legally it did not require cooperation, but there were particular problems at the borders with Ontario and New Brunswick with newspaper and TV ads giving conflicting dates for registration or other key election information.

 

Game changer?

As well as changing the board on which the political game played out for future elections, the 1992 referendum also changed who some of the winners were.

As then Reform Party leader Preston Manning recounts, the vote gave members and riding associations a trial run for the federal election that took place a year, less a day, later. Reform went from having one MP to 52, finishing third4. The party would eventually evolve to become the current Conservative Party, who won a majority government in May 2011.

“It was just a god send from that angle because all the things you had to do in an election campaign are almost the same as what you had to do in a referendum campaign,” he says. “There had to be a communications effort, there had to be fundraising. Some of our key people got to debate for the first time with a sitting MP and found out that they could hold their own, that their material was as well researched as the member of parliament, that they could sway a public audience as much as this previously elected person.

“And that campaign both tested all our machinery and really prepared the party for the 1993 federal election.

“We were worried because we had limited resources. I remember one discussion with our party executive and in particular our financial and budgeting people – could we afford to participate in two campaigns within a year? And these were national campaigns, although we were not active hardly at all in Quebec.

“But as it turned out, we actually got more revenue than we spent in the referendum campaign. I think we had $170-200,000 that we were able to take from that campaign and move on to apply to the federal campaign.”

But Mr Manning wasn’t the only one to advance from the referendum campaign.

 

The campaigners who became the who’s who

Preston Manning became official opposition leader in the 1997 election and is currently president and CEO of the Manning Centre for Building Democracy, in Calgary, Alberta, for “building Canada’s conservative movement”5.

One of those new MPs in 1993 was Garry W Breitkrevz, who a year earlier led the No Yorkton-Melville Constituency Referendum Committee in Saskatchewan. He declided to comment for this piece6.

Jean Chrétien became prime minister in 1993 and stayed until 2003. He did not reply to a request for comment7.
Lorne E Chester, who led the Victoria-Haliburton YES Committee became an Ontario provincial court justice. Justice Chester declined to comment8.

In Newfoundland, the Cable Atlantic YES Committee was led by Daniel E Williams, who became premier of the province from 2003 to 2010. He did not reply to an interview request9.

Emechete Onuoha led the McMaster Alliance for Canada – Hamilton West, and eventually went on to be chief of staff to the minister of national defence in 1999, and is currently vice president citizenship and government affairs at Xerox Canada. He declined to comment10.

Manitoba had a former lieutenant governor leading the provincial campaign in the form of Pearl McGonigal. But W Yvon Dumont, who led the Metis National YES Canada Committee from Ottawa, would himself become Manitoba lieutenant governor just months later and until 1999. Both did not reply to interview requests11.

Dan Ish, who oversaw the Saskatoon-Humboldt Canada Committee, is now chief adjudicator of the Indian Residential Schools Adjudication Secretariat in Saskatchewan. He declined to comment12.

One of Mr Shaw’s campaign workers, recruited from outplacement firms for “networking experience that they would die for”, was Jamie Baillie, current PC Party leader in Nova Scotia. He did not reply to an interview request13.

Jerry Lampert, who chaired the British Columbia – Canada Committee Foundation, is now a commissioner at the BC Treaty Commission. He declined to comment14.

The campaign was a key point in the lives of hundreds of activists on both sides of the battle to define Canada’s future direction. And both sides left unfinished business.

 

Shhh – don’t mention the constitution

Even looking at the last lines of the Charlottetown Accord, there were 20 items that didn’t find agreement during negotiations. Had the yes side won, there would have still been left outstanding aspects of nation-building.

Twenty years on, the original French-English problem of two founding nations that the negotiators sought to solve, is more complicated.

“This was a bargain between the French and English in founding this nation and everything therefore flows from that,” explains Mr Filmon.

“The problem with that is that more than half of the population in Canada come from neither French nor English backgrounds, and it completely ignores the fact that the aboriginals were there before the French and English came.

“Therefore you’ve got to look at all these different ramifications and ways of conceiving what this country is really founded on.

“There’s a group that always puts forward, for instance, the lack of property rights in the constitution and those people would love to open the constitution on that score. But the minute you do, you have the same challenges we did at Charlottetown, which is there are other legitimate interests and concerns about the constitution that other groups will say the constitution doesn’t adequately address.”

Senate reform, and in particular attempts to make its members elected, has long been a point of contention, particularly in western Canada.

Preston Manning gives the example of equalisation payments in the constitution. The 1982 version gave a guarantee of “equality of service” with money to “have-not” provinces. It gave no “reference to how those provinces manage their resources or their fiscal houses”, he says.

“And the current constitution entrenched aboriginal treaty rights,” he goes on. “Eventually it’s going to become apparent that the reserve model based on treaty rights is simply not the way forward for aboriginal people. And so maybe that will reach a crisis point where people will just agree that encasing that approach in a constitution was something that would have to change.

“There [are] all kinds of opportunity for that but people don’t see the grand scale or the platform for making those improvements being constitutional change.

“As we get further and further down [the road] from the 1982 constitution, the flaws in it became more apparent, that the Canada of the 1980s is not the Canada of the 21st century. And if you try to capture your vision of Canada too narrowly, 10, 20, 30 years down the road your constitution will be more of a straight jacket than it will be an instrument for achieving a grand vision.

“I think Canadians, if we ever do get into a future constitutional discussion, and it’ll probably be around some of the flaws of the current constitution, will be very wary of trying to capture too narrowly the values and priorities and vision of Canada today.”

There have been other experiments with changing Canadian definitions since Charlottetown 20 years ago.

The Calgary Declaration in 1997 replaced “distinct society” with “unique character” and stressed the equality of provinces. But a separatist government at the time in Quebec dismissed it and the agreement was largely forgotten15.

In 2005, the “First Ministers and National Aboriginal Leaders Strengthening Relationships and Closing the Gap” – dubbed the Kelowna Accord – tried to address indigenous issues with $5 billion in spending outlined over 10 years16.

The Conservative Party minority government that took over in 2006 never implemented the agreement.

Ovide Mercredi, national chief of the Assembly of First Nations in 1992, declined to be interviewed for this feature except in person. But in an email, he stated: “I remember Bob Rae saying that it would be at least another 25 years before the constitutional renewal process for aboriginal peoples would resume again. He may be right but it will take a revolution in thinking before Canada sees my people as the foundation for peace, coexistence, equity and justice. What could have been, and what is today, is like day and night.”

 

Does Canada have the stomach for more debate?

Peggy Gallant in Nova Scotia now confesses she may have been naive in 1992.

“I think that some of the things that were being advanced in this accord weren’t doable, are still not doable,” she says. “Doesn’t mean that we can’t keep trying.”

Gary Filmon recognises that the period was unique.

“There was this huge focus in the aftermath of the failure of Meech Lake and you had a lot of leaders across the country who were big-picture people, who were looking at the long-term best interests of Canada and were willing to invest a lot of time and energy and effort in trying to do something about this,” he says.

“I don’t think you’ve got that there today. I don’t think you’ve had it since then. And I’m not sure how long you have to look into the future to find someone who will try and stir this up as an issue.”

“People were fed up and it was that simple, and they’re still fed up,” says Robbie Shaw. “If anyone tried now to launch some major constitutional change initiative, it would get no support in the country at all. And I’m not quite sure why people got so fed up, but they did.

“You don’t have any of the premiers issuing any kind of public statement, let alone trying to mount any kind of initiative, suggesting that constitutional change is important.”

Jean-Pierre Kingsley, having run the referendum, says it taught every politician “you’re not going to fool around with the constitution very easily”.

And Mr Filmon certainly learned his lesson.

“Anyone who has great ambitions from a viewpoint of a historian,” he says, “or a viewpoint of a constitutional purist or from the viewpoint of someone who sees themselves as a nation-builder, a nation-molder, they’re going to have great difficulty in putting together an argument as to why we need to, once again, rush into the breach and tackle this by amending our constitution, recasting our constitution.

“People have arrived at the conclusion that really everybody is much happier when the economy is strong, the country’s healthy and we don’t worry about these other things because they’re really not all that important.”

With voter apathy ever increasing, Beryl MacDonald in Nova Scotia says the whole idea of conversation is not there.

“The referendum was a first exercise in populism, but nobody could sustain that,” she says. “How do you get 100,000 people to discuss a topic and come to a consensus? That’s the dilemma of democracy. Populism systems work great for a tribe or a small town maybe but not a country.”

 

The crisis nobody sees coming

Of the interviews for this feature, the one agreement across all the former players in the 1992 referendum is that constitutional debate is not coming back – unless there’s trouble. And there won’t be, because Canada’s doing fine.

“It would take some sort of crisis to get people engaged in constitution making,” says Preston Manning. “I don’t think there’ll arrive a day when Canadians say, ‘You know I just think we should have a general overhaul of the constitution’ and there would be any enthusiasm for it.

“For example, if Quebec had won the 1995 referendum17 and had actually started to separate, then three quarters of the Trudeau constitution of 1982 becomes unworkable or irrelevant. So you’d have been forced to have a complete redesign of the constitution. That’s an extreme example but that would be a case of whether people wanted constitutional change or not, you’d have to do it and people would have to engage in it.”

Canadians just “roll with the punches”, says Jean-Pierre Kingsley. “They know that this is what went into the ballot box and that’s what came out of it. And that’s what we want as Canadians.

“Canada still exists. It’s one of the strengths of the Canadian system after every election, the morning after, everybody gets up, goes to work and that’s it. You get on with life. This is either a new feature or it isn’t. It’s a continuation of the same or it’s absolutely new.”

Alex Cullen says the referendum proved the nation’s institutions to be “robust” and “life went on”. Twenty years on, “there’s been barely a reverberation”.

There is, however, a tone of resignation in accepting that Canada is “okay”.

“Somehow, within Canada, we kind of just hobble along, right?” says Peggy Gallant. “We seem to keep our country together despite our regional disparities. Rather than reducing our regionalism or the disparities that exist, I think we have expanded them. I think they’re even more evident. But I still think that Canadians still seem to be Canadian first.”

Robbie Shaw says the country is “trotting along quite well”. Peter Milliken says Canada “manages”.

“Yes, you can argue that it could be better governed if we did something else,” he continues, “but that argument is always going to be around, no matter what the constitution says. I don’t think we have to make changes just for this sole purpose.

“[The referendum] was not an earth-shattering event in that sense. Yes, it stopped the accord going ahead, but we didn’t change the constitution, so what’s the difference?

“I don’t know whether we need more changes. We can function with the existing constitution. There may be some who prefer to make changes to it and do it a different way, but I don’t think it’s stopping us from carrying on as a country at this stage.”

 

History’s lessons and old age

Is there a lesson from the Charlottetown Accord and its referendum?

Preston Manning says that “getting a run” at constitutional issues with Charlottetown will serve Canada well when, or if, it tries to address them again.

Andrew Nellestyn, retired colonel18, says nobody may ever eradicate attempts at autonomy or independence within Canada.

“But we have to recognise and learn from the past that we will have to address this again and again and again,” he says. “And if the best you can do is provide a period wherein we can all move forward as Canadians and prosper accordingly, then there is some benefit to doing that.

“The matter of dignity, the respect for the fact that people are different – whether that be in a micro unit such as the family or in a macro unit such as a nation – that there are differences and you have to work to accommodate those particular differences and ensure that people feel that, on the whole, they’re getting a fair shake. If they don’t believe they’re getting a fair shake, they will continue to protest in whatever form they feel at the time is the most effective.”

No agreement is ever perfect, he says, but Charlottetown was a “defining moment” in exaggerating the differences in what people felt Canada should look like, contrary to people sitting around the table and finding agreement.

“I think it matters in the sense that there is historical baggage,” he continues. “We must continue to try to create those conditions, that environment, in which people feel that, as individuals and as a collective society characterised by language or whatever, [they can] learn to accommodate themselves for the greater good.

“I do believe that, not only as it relates to Canada but it relates to other nation states or other communities, tribes or whatever you wish to call them, we must always look for ways in order to live together, to accommodate each other’s differences, because that’s what the strength of a community or a nation state is: the ability to live together and to live with your neighbours and to move forward. Because otherwise, it’s game over, and I don’t believe in game overs.”

Jean-Pierre Kingsley summarises the referendum as a choice, but a profound one.

“It is part of our history, whether we think it is important,” he says. “The very fact that we held it makes it important.

“Let’s face it, we had a new definition of the country, sharing of powers in our hands, and we said, ‘no, we prefer to maintain what we have’. And that’s what we did. It was an opportunity and we took the opportunity of saying no instead of saying yes.”

Time moves on, says Mr Nellestyn. “It is incumbent on all to make accommodation to reflect what Canadian society now is and what it believes to be dear to itself. If that doesn’t happen, then you either have a period of stagnation or you have a situation which anarchy comes to the front.”

 

Gary Filmon started this series with the notion that the Charlottetown Accord was such a worthy agreement that it should be put to the people.

“Yes, I thought it was a good agreement. Yes I would support it even today. And probably no, I wouldn’t put it to a referendum.

“Because, as I say, it’s so easy to make the perfect become the enemy of the good and stir up anger and anxiety amongst people by showing them all the individual parts as opposed to looking at the whole.

“People have become so pragmatic about what their expectations are of government these days that they’re well beyond the early days of creations of countries where you debate [ad] infinitum the niceties of constitutions and you try to perfect the principles and all of the different elements of your guiding blueprint for the country.

“And people these days are just saying, ‘To heck with that. Give me a government that keeps the economy rolling, that keeps people working, that protects people’s rights – all those kinds of things. Don’t get into all of this minutiae’.

“I just don’t see a change in that attitude, maybe ever. I think it might be the maturity of a country.”

 

Copyright 2012 Tomorrow.is. All rights reserved.

  1. Court of Appeal for Ontario [Sauvé, (1988) 66 O.R.(3d) 481
  2. Archives Canada details of the commission.
  3. Supreme Court upheld a decision by the Federal Court of Appeal [Haig v Chief Electoral Officer; Supreme Court of Canada; File #23223
  4. http://esm.ubc.ca/CA93/results.html
  5. http://manningcentre.ca/
  6. http://www.parl.gc.ca/MembersOfParliament/ProfileMP.aspx?Key=170247&Language=E
  7. http://www.heenanblaikie.com/en/ourTeam/bio?id=2355
  8. List of Ontario justices.
  9. http://www.premier.gov.nl.ca/premier/formerpre.htm
  10. Details on Emechete Onuoha here and here.
  11. http://www.lg.gov.mb.ca/history/past/index.html
  12. http://www.iap-pei.ca/us-nous/us-nous-eng.php
  13. http://www.pcparty.ns.ca/page/jamie%20baillie.aspx
  14. http://www.bctreaty.net/files/bios.php
  15. Copy of Calgary Declaration.
  16. Kelowna Accord agreement.
  17. Results of 1995 referendum in Quebec.
  18. Biography of Andrew Nellestyn.

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