28th Anniversary of Defeat of Consensus Report on the
Constitution in 1992 Referendum

Significance of the Charlottetown Accord and Its Defeat

- Anna Di Carlo -

September 10, 1992. Leader of CPC(M-L) Hardial Bains speaks in Ottawa at a meeting of the Committee to Vote No on October 26.

October 26 marked the 28th anniversary of the Referendum on the Charlottetown Accord and the defeat of the establishment forces that day in 1992 by the Canadian people. The Charlottetown Accord, formally entitled Consensus Report on the Constitution, was a deal to amend the Canadian Constitution struck by then Prime Minister Brian Mulroney, 10 provincial first ministers, two territorial leaders and four Indigenous representatives.[1]

The Charlottetown Accord was the second attempt at constitutional reform by the Conservative government. The first was the Meech Lake Accord of 1987 which failed to receive the required approval of the provincial and territorial legislatures and met its death on June 23, 1990.[2] During this period, the demand for a constituent assembly or constitutional convention elected by universal suffrage emerged as a rejection of elitist control and as the way forward for the peoples of Canada to decide their own foundational law.

While the period leading up to the Charlottetown Accord saw a raft of consultations claiming to seek the input of Canadians in this new attempt, its drafting followed the elitist course of Meech Lake. Once 11 first ministers struck a draft final agreement, they decided to hold two last meetings in Charlottetown, Prince Edward Island, where they would have a symbolic signing ceremony. This was meant to convey the confidence of the ruling elite in their accomplishment, because it was in Charlottetown, from September 1 to 9, 1864, where the rulers of that era worked out some of the resolutions to implement decisions taken by the Imperialist Parliament in London, England, which subsequently led to the imposition of the British North America Act, 1867.

Most significantly, invoking this gathering of Canada's "founding fathers" clearly conveyed the belief of the first ministers that political norms of the 18th and 19th centuries would be accepted by the Canadian people and that they could forego the modern requirement for a constitutional convention and the participation of the citizenry in drafting their own constitution. Why Charlottetown has been iconized as the place where the Constitution was born is a question in itself, since it was actually the Quebec City Conference in October 1864 that led to the initial 72 Constitutional Resolutions of the "founding fathers," while another 69 Resolutions were added in London, England in December 1866 which, combined, constituted the British North America Act of 1867. It can only be surmised that naming the Accord in honour of Quebec City or London did not suit.

The Charlottetown Accord deal aimed to enshrine the status quo in the Constitution and turn over to Canada's first ministers -- the prime minister and the provincial premiers -- the right to make decisions on behalf of the Canadian people. It would have given them carte blanche to do as they pleased, with the Canadian people dismissed to the margins with the sole role to act as voting cattle every few years.

As is still the case today, at that time a broad discontent with the political process and the politicians prevailed across the country, rooted in the feeling that the people exercise no control over the affairs of the polity. The question of where the sovereignty lies -- with the monarch or the people -- came to the fore. The Charlottetown Accord retained the clause vesting sovereignty in the Queen, with the justification that the monarch is merely titular head of state and that the real power lies in party government elected by the people. This disinformation not only mixes up government and state for purposes of hiding who controls the state but also begs the question of who the democracy and the democratic institutions represent.

In any event, it failed to divert the people from the need to vest sovereignty in the people. Far from being willing to give up their inherent right to participate in taking the decisions which affect their lives and control the decision-making power, the people showed themselves to be deeply concerned about the constitutional affairs of Canada and the need to modernize constitutional arrangements arrived at more than a century ago -- 128 years at that time to be precise. Laying down the fundamental law of the land is a right which belongs to the people who comprise the body politic on the basis of arrangements which favour them, not the British white men of property who signed the constitution in 1867 as an Act of the British Parliament under the auspices of the 4th Earl Carnavron at Highclere Castle in Hampshire, England (of Downton Abbey fame).[3]

The concern of the people over the state of the constitution and political affairs was reflected in the extent to which people participated in the Charlottetown Referendum. Nationally, 73 per cent of eligible voters voted. The 1993 election which reduced the Mulroney Conservatives to two seats in the House of Commons saw a turnout of 69.6 per cent. Since then there has been a steady decline in voting participation with relatively minor fluctuations, ranging from a low of 58.8 per cent in the 2008 election to what is considered a "high" -- estimated 68.1 per cent turnout for the October 2015 election, while the 2019 federal election saw a turnout of only 67 per cent.

The number of people who voted No in the Charlottetown Referendum was 7,550,723 (54.2 per cent) and the number who voted Yes was 6,185,902 (44.8 per cent). Only Newfoundland, New Brunswick and the Northwest Territories, voted Yes. All other provinces and the Yukon voted No. In Ontario there was virtually a tie, with 49.8 per cent voting Yes and 49.6 per cent voting No.

The Cynical and Cruel "Consultations" Leading Up To the Charlottetown Accord

Following the defeat of the Meech Lake Accord, myriad public consultations and special parliamentary committee deliberations were conducted in the name of involving the people in the constitutional process and "preparing the groundwork" for the next constitutional round which resulted in the Charlottetown Accord. On this basis, it was claimed that unlike the Meech Lake Accord, Canadians had been broadly consulted and would undoubtedly agree with it in a referendum.

In December 1990, a Special Joint Committee on the Process for Amending the Constitution of Canada was launched to review the Constitution's amendment formulas and "consult broadly with Canadians on the role of the Canadian public in the process." A distinct aversion to acknowledging the existence of citizens as the relevant entities of the body politic was manifest. In its report, issued in June 1991, the Committee stated that "by far, the most commonly suggested alternative to executive federalism[4] was some form of constituent assembly or constitutional convention."

"Indeed," it said, "our hearings suggested that the idea of a constituent assembly has acquired something of a hold on the Canadian political imagination during the 12 months since the Meech Lake amendments failed to achieve ratification. While constituent assemblies were virtually unmentioned in public discussion as recently as a year ago this forum is now the subject of continuing attention in the media and in our hearings and submissions."

The Committee further concluded that "public dissatisfaction with the first ministerial negotiation methods of developing constitutional amendment proposals is so high that any proposals now brought forward would be in immediate jeopardy, irrespective of their merits, if they were seen by the public as being a product solely of eleven first ministers making deals behind closed doors." It said that public participation was critical to the success of any constitutional reforms.

Still, the Committee rejected the demand of Canadians for a constituent assembly, ridiculing the idea that "public participation could be achieved through the direct election of non-partisan assembly members on the basis of their constitutional views and values." It scoffed at the idea that such a body would better reflect what Canadians want than "politicians elected on general party platforms."

Two other consultative bodies were established during this period. The Spicer Commission, formally known as the Citizens' Forum on Canada's Future, started its work in January 1991. The Commission of twelve "prominent Canadians" was led by the former Commissioner of Official Languages, Keith Spicer. The forum solicited briefs from organizations and held public hearings across the country. About 400,000 people participated. The forum delivered its final report on June 27, 1991. It confirmed not only the broad political discontent, but the keen interest of Canadians to participate in drafting their own constitution. The hundreds of meetings that took place across the country were even described as "virtual constituent assemblies."

Then, a Special Joint Committee on a Renewed Canada was established, comprised of 15 Members of Parliament and 10 Senators, which issued a report in February 1992. It too was said to provide the people with "an opportunity to participate fully in the development of the Government of Canada's plan for a renewed Canada." It received over 3,000 submissions -- a historical record at the time, held 78 public meetings and heard 700 individuals. It televised five national constitutional conferences.

The Important Contribution of CPC(M-L) to the Historic Rejection
of the Charlottetown Accord

In March 1992, in response to the Special Joint Committee on a Renewed Canada, known as the Beaudoin-Dobbie Report, an Enlarged Plenum of the Central Committee of the Communist Party of Canada (Marxist-Leninist) issued its views on the requirements of a democratic constitution and called on Canadians to reject the Beaudoin-Dobbie Report. CPC(M-L)'s statement set out the fundamental requirements of constitutional renewal and rejected the duplicitous conceptions of "inclusion" and "rights" contained in the Beaudoin-Dobbie Report.

The Committee recommended "an important new constitutional provision that would permit the federal and provincial governments to delegate legislative powers to each other, under a process that will ensure public debate and transparency." CPC(M-L)'s statement rejected the Joint Committee's proposals for the further entrenchment of executive federalism as the means for amending the constitution.

"This is a dangerous proposal indeed," CPC(M-L) wrote. "The traditional method of depriving the Canadian people of the right to make all fundamental decisions which concern them through direct and and universal suffrage is to be given constitutional protection. We firmly believe that all Canadians must take a resolute and categorical stand in favour of their right to draft their Constitution through direct and universal suffrage. Canadians have rejected any 'process that will ensure public debate and transparency' which deprives them of this fundamental right."

CPC(M-L)'s statement also addressed a most central problem of the relationship between the constitution and the form of government, or nature of the economic and political system it espouses. This was particularly important at that time because of the reactionary direction in which the Canadian economy was being taken. With the Government having initiated the integration of Canada into the North America of the monopolies with the Free Trade Agreement of 1988, the Special Joint Committee on a Renewed Canada showed particular concern for constitutional arrangements to serve this new global order. It spoke of the need for a federalism that was "capable of responding to the global challenges and problems of a shrinking world." It spoke of strengthening the federation so as to use the "capacity it offers to manage our inevitable interdependence for the greater good of all Canadians ..." This greater good was defined as creating not an economy based on serving the all-sided needs of the people, but one which could be "competitive" in the global economy. "We believe that the Constitution should include a declaration committing Canadians and their governments to the important economic goals of our country. A new social contract will be an important element in economic renewal; a competitive economy is an essential condition of social well-being."

CPC(M-L) sharply rejected such notions. It wrote: "These are not questions of basic principle. The basic principle at stake is the right of the people to decide these matters for themselves as they see fit. They are to be determined by the people according to their needs and desires at any particular time in their historical development. This is the right which must be incorporated in the Constitution. It is as clear as clear can be that to enshrine a particular form of government or economic and political system in a constitution is a fundamental violation of freedom of conscience and belief."

CPC(M-L)'s statement noted: "The lack of fundamental rights in the present Canadian Constitution is the root cause of the constitutional crisis. Other problems which the Joint Committee purports to take up, such as the necessity for economic renewal, and how to function in an 'interdependent world,' are matters of government policy on which Canadians should also be consulted whenever it concerns questions of fundamental directions for Canada, but they do not pertain to a country's constitution. So long as these fundamental issues are not addressed by the people of Canada, successive Canadian governments will continue to create havoc for our lives."

In conclusion it declared the following "fundamental tenets of a democratic constitution:"

"1. Equal rights and duties for all Canadians,

"2. The right of the nation of Quebec to self-determination,

"3. Recognition of the hereditary rights of the Native Peoples, and

"4. The right of the Canadian people to draft their own constitution (which will require the election of a Constituent Assembly) and to adopt it through direct and universal suffrage."

The proposals of the Joint Standing Committee on the Future of Canada were instead adopted as the basis for what came to be known as the Charlottetown Accord.

32 Years Later: The Task of Constitutional and
Democratic Renewal Remains the Order of the Day

Following their defeat in the Referendum, the ruling elite declared "business as usual," meaning they would continue ruling through the executive power, including bringing about the changes they wanted without amending the Constitution. Nothing in the arrangements that prevailed at the time impeded them from doing so. And this is in fact still the case today.

To this day, the ruling elite have closed the door to discussion on the Constitution because of their profound fear that the striving of the people for empowerment will be once again unleashed. This was seen in the Liberal's 2015 Election Platform on Senate reform: "We also believe that government should focus its efforts on the priorities of Canadians, not on more rounds of constitutional negotiations."

The profoundly and universally held opposition of the ruling elite to reopening constitutional talks lies in their 1992 Referendum experience. With the Referendum on the Charlottetown Accord, Canadians began to make the link between the Constitution and political rights inherent to citizenship and to their lack of control over decisions in their daily lives.

CPC(M-L) was very active during the Referendum on the Charlottetown Accord. The Committee to Vote No on October 26 was spearheaded by the Party, whose leader Hardial Bains pointed out that in its simplest form, the question became very focused around the issue of whether or not the constitution should guarantee some fundamental rights.

Hardial Bains pointed out that when John A. Macdonald declared that in Canada there are "no rights, only privileges" there was no illusion that the government defended the rights and freedoms of the people. He pointed to the patriation of the Constitution and the inclusion of the Charter of Rights and Freedoms in 1982, noting they served to create illusions about the degree to which rights and freedoms are guaranteed. However when push comes to shove, Hardial Bains said, "the Canadian people find the same dictate of no rights, only privileges."[5]

The Canadian people can no longer operate within the existing constitutional set up, Hardial Bains concluded:

"Canadians started to grapple with the fact that the Canadian constitution recognizes neither the citizens that comprise the Canadian polity, nor the rights and duties that belong to them by virtue of being human and by virtue of being members of the polity. One of the other developments that took place in this period was a distinct emergence of Canadians as a people and their broad opposition to the racist concept of 'two founding nations' and their demand for the recognition of the equality of all citizens regardless of their national origin, language spoken, etc."[6]

"The limitations imposed on them by the constitution, by the negation of their sovereignty and their right to determine their own constitution, and by the political and electoral process in which they have no role in actually governing the country are shackling their every move when it comes to dealing with any of the problems they face."[7]

Hardial Bains astutely analyzed that it is "a law of limitations" which denies Canadians "the possibilities to deal with the myriad problems plaguing the society."[8]

Faced with the effort of the Canadian establishment to end the constitutional issue, the members of the Committee to Vote No on October 26 turned their outrage at this situation into a practical program to empower the people so that they can exercise control over their lives.

The National Council for Renewal was founded on December 19, 1992 in Toronto. In a signature campaign, 25,000 people across the country endorsed the founding of the Canadian Renewal Party in April 1993 as a non-partisan association to continue the work for the renewal of the political process. A Canada-Wide Campaign for a Modern Constitution and Democratic Renewal was launched in the fall of 1994.

The two diametrically opposed positions that emerged with the Referendum Campaign on the Charlottetown Accord highlight the importance and need for a Canada-Wide Campaign to this very day. One position is that the Constitution Act,1982 has no relevance to the Canadian people; it declares Canadian "democracy as we know it" is just fine if only it is not abused and that the problems facing the Canadian people and society fall into some other sphere, be it economic or cultural or social, or in terms of changing government policy on this or that issue. Today the lack of consent of the people for the government's empowering itself with emergency powers so that it can act without limitations of any kind is reflected in a kind of hysteria to preserve what are called the democratic institutions. Neo-liberal notions of rules-based government, civil society, legitimacy and "Canadian values" are peddled on a continuous basis to justify the rule of the plutocrats.

The other position put forward as concerns the Constitution is at the heart of the program of CPC(M-L)'s modern nation-building project. CPC(M-L) points out that Canadian society has come to a point where its development is being obstructed by its constitutional foundation which is rooted in the colonial, racist and anti-people conceptions of the British North America Act, 1867 (not discarded when the Constitution was so-called patriated in 1982) and the Constitution Act (1982) was adopted with its Charter of Rights and Freedoms. Conceptions of rights are based on "reasonable limits" decided by a hidden power and the political process which continues to be premised on all the notions in vogue during the Cold War period.[9]

The Meech Lake Accord and the Charlottetown Accord both bore the imprint of the neo-liberal anti-social offensive and the narrow private interests favoured by it. They came on the heels of the full-steam ahead integration of Canada into the U.S.-dominated economy and its war machine and had as one of their aims the dismantling of the existing power-sharing arrangements to facilitate the opening up of the country to the most powerful global market forces. This trend has continued to this day, with the Trudeau government's Throne Speech being the most recent example.

Since its defeat on October 26, 1992, the ruling elite have not dared to put the issue of the constitution before the Canadian people. In this light, the demand of Canadians for constitutional and electoral renewal and their striving for empowerment in all its form continues to stand as the greatest obstacle to the retrogressive and dangerous path of ruling elites.

The inability of the ruling circles to resolve the crisis of governance and modernize the political arrangements at the time of the Referendum on the Charlottetown Accord has led to further degeneration in the political, social and economic life of the country due to the direct neo-liberal take-over of the state and its institutions and government by narrow private interests of the oligopolies, their cartels and coalitions. The situation facing Canadians today makes clear the urgent necessity to join in the work for political renewal and a modern constitution to resolve this crisis in the people's interest once and for all.

Notes

1. From March to July 1992, negotiations took place between the federal, provincial and territorial governments, minus Quebec, along with the involvement of the Assembly of First Nations, the Native Council of Canada (now the Congress of Aboriginal Peoples), the Inuit Tapirisat of Canada and the Métis National Council. Quebec joined the talks in August, leading to the final accord.

2. See "30th Anniversary of the Defeat of the Meech Lake Accord: Political and Constitutional Renewal Has Never Been More Urgent," by Christine Dandenault, TML Weekly, June 27, 2020. 

3. Henry Herbert, 4th Earl of Carnarvon was appointed Secretary of State for the Colonies in the British Privy Council in 1866. He is recorded in history as the man who "conferred self-government on Canada." He also attempted to impose a system of confederation in Southern Africa. When such a system was rejected by the peoples of the region, Carnarvon unleashed the full force of arms to impose it against the armed resistance of the people. The South African confederation scheme was dropped when he resigned in 1878, but his policies and the resulting local conflicts continued and are said to have led to the Anglo-Boer War and the ongoing divisions in South African society.

4. "Executive federalism" is described as both an "institution" and a "tradition" in Canadian constitutional development. It particularly developed in the period following World War II when the 11 first ministers started to meet regularly. This is contrasted with "legislative power." According to the Special Joint Committee on the Process for Amending the Constitution, "Legislative power was at its height in Canada in 1867. In the twentieth century, executive power has prevailed. Hence the new dynamic within Canadian federalism. Executive negotiation has become the preferred approach for negotiating constitutional amendments."

5. "Themes Emerging Out of The Canada-wide Campaign For a Modern Constitution And Democratic Renewal: Why a Canada-wide Campaign?" TML Daily, October 2, 1994.

6. Ibid.

7. Ibid.

8. Ibid.

9. British North America Act, also called Constitution Act, 1867, the Act of Parliament of the United Kingdom by which in 1867 three British colonies in North America -- Nova Scotia, New Brunswick, and Canada -- were united as "one Dominion under the name of Canada" and by which provision was made that the other colonies and territories of British North America might be admitted. It also divided the province of Canada into the provinces of Quebec and Ontario and provided them with constitutions. The Act served as Canada's "constitution" until 1982, when it was renamed the Constitution Act, 1867, and became the basis of Canada's Constitution Act, 1982, by which the British Parliament's authority was transferred to the allegedly independent Canadian Parliament all the while maitaining the Royal Prerogative  and Queen of England as head of state. 

The British North America Act conferred on the new dominion a constitution "similar in principle to that of the United Kingdom." The executive government was vested in Queen Victoria and her successors. These two provisions meant that Canada would have parliamentary and cabinet government. The legislature was to consist of a Senate, its members appointed for life from the regions of Canada, and a House of Commons elected from the provinces on the principle of representation by population -- one member of parliament for every so many citizens which was supposed to be more or less equally distributed within electoral boundaries. The Act provided that criminal law should be federal and civil law provincial. The federal government was to appoint all senior judges, the provinces to administer the laws and maintain the courts. The Act also authorized establishment of a Supreme Court of Canada.

The allocation of powers between the federal and provincial governments was done by sections 91 and 92 of the Act. By the former, the federal legislature was given power to legislate for "the peace, order and good government of Canada," and "for greater certainty" 29 subjects of exclusive federal jurisdiction were listed. The Act also gave the federal government the right to disallow any provincial act within two years of its passage. The provinces might levy direct taxation only, whereas the dominion might use any mode of taxation. The Act thus provided for a union in which the federal government had general and overriding powers, while the provinces had particular and restricted ones.

The course of judicial interpretation in the Judicial Committee of the imperial Privy Council nevertheless transformed the character of the federal constitution under the Act by greatly reducing the powers of the federal government and correspondingly increasing those of the provinces. The Act provided no process of amendment. Amendments were made by the imperial Parliament in London at the request of the Parliament of Canada.

("Constitution Act, 1867 -- An Act of the Parliament of the United Kingdom," Encyclopaedia Britannica.)

This article was published in

Volume 50 Number 48 - December 12, 2020

Article Link:
28th Anniversary of Defeat of Consensus Report on the : Significance of the Charlottetown Accord and Its Defeat - Anna Di Carlo

    

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