Appointments to the Supreme Court of Canada and the Senate.
A Few Events that Mandel Mentions which led up to the Meech Lake Accord.
The ratification of the Accord was put into jeopardy when two provincial elections thew signatories out of office.
The Yukon and North West territories went to court arguing that their territories were excluded from certain provisions of the Accord and prejudiced by others and that they had the right by constitutional convention to be heard when amendments were considered and by constitutional law to be fairly included in the deal. The Territories lost their case and the appeal court cited the following "that any conventions had been abrogated by the new amending power, and the Charter could definitely not apply to its own amendment. "
Ontario Lawyers Eddie Greenspan, Morris Manning, and Timothy Danson announced in May 1988 that they were going to launch a global attack on the Accord.
Trudeau and others asked for a reference to the SCC just to say what the Accord meant.
Mandel suggests that the signatories to the Accord preferred the ambiguous nature to the Accord , that this was it’s appeal.
Opposition to the accord slightly outweighed those who were in favour of it, but the largest group were those who were unsure about the Accord all together. April, 1988 Poll. Quebec had opposite reaction.
Dissecting Each The Six Segments of the Accord
Pg 476, S.1 of the Accord states the distinct society clause: "Quebec constitutes within Canada a distinct society."
People were unsure of what this meant. Did it mean giving additional powers to Quebec or subtracting powers from the Federal Government? Or was it purely symbolic without legal ramifications?
Mandel cites Peter Hoggs interpretation of the clause which was that the clause should be regarded as "an affirmation of sociological facts with little legal significance" and that it was mainly symbolic. However, he also said that since a law with the purposes "recognized" or "affirmed" by the amendment would "give those purposes added weight" as ‘reasonable limits,’ the clause could indirectly expand powers via the reasonable limits clause. But then again, according to Mandel it might not.
AT the end of the day, it would essentially come down to the courts and what the courts made of the words. Therefore, the courts could read in or read nothing out of the distinct society clause.
Meech Lake also provided a clause that created a mechanism for putting in place agreements between the federal government and any province to give that province control over immigration.
Such types of agreements had already existed (e.g. between the federal government and Quebec) however this in effect would give constitutional status to these agreements.
These types of agreements would operate as an exception to the federal government’s exclusive jurisdiction over immigration and could not have been revoked except by agreement of both governments.
All agreements had to uphold national standards and objectives relating to immigration or aliens, other wise it would be of no effect.
According to Mandel, what this clause essentially did was to give modest supervision of such agreements to the courts. It allowed the federal governments exercise of power of this area to by judicially reviewed.
However, Mandel points out that the Courts probably had the ability to review such agreements via the Charter anyway, so it was difficult to tell what this provision actually accomplished.
The Spending Power
This clause provided that the federal government would have to compensate a province that chose to opt out of any future national shared-cost program – "if the province carries on a program or initiative that is compatible with national objectives."
Most often given example was the National Day-Care Program
This clause was attacked for potentially weakening the federal government’s ability to carry out social programs. But it was also suggested that it would strengthen the provincial capacity to innovate.
The significance of this provision was that previously the courts had modest judicial supervision over this spending power, but having it in the Accord gave them an increase power over this particular subject matter.
Amendments to the Constitution, p100
This provision made it more difficult to amendment some aspects of the Constitution.
Previously a "7/50" formula was used (7 of the provinces, 50% of the population. But this provision required complete unanimity for amendments to the following subject matter: fundamental changes to the Senate, the House of Commons, French and English, the Supreme Court of Canada, the creation of new provinces and the extension of old ones.
The unanimity requirement was not to be applied to amendments concerning the division of powers.
The Federal Government and the Premiers of the Canadian provinces were required to have two annual conferences: once concerning constitutional issues and the second concerning the economy.
Mandel points out that one would think a simply promise to have such meetings would be enough, but that as First Nation’s peoples have experienced, they are no guarantee’s of any agreements.
The Supreme Court of Canada was to be entrenched in the Constitution.
According to Mandel the real point of this provision was to put the Court beyond the reach of the federal government.
Within this provision, Quebec specifically benefited by having Constitutional entrenched the right to 3 judges on the SCC. In conjunction, when a SCC judge retired from their position, the province in which it was their turn to have a judge sit on the court from their region would submit a least of judges from their province which qualified to sit on the Court (e.g. a person who has been a judge of member of the province’s bar for over 10 years). Ultimately, the federal government would chose who would sit on the SCC bench, but they would be limited to the names put forth by the province.
Many people within the judiciary were critical of this provision like Judge Estey and Thomas Berger (e.g. Quebec may play politics by not submitting any names at all and grinding the Court to a halt).
Meech Lake and the Legalization of Politics
Mandel argues that if Meech Lake had been ratified it would have meant the expansion of the domain of legalized politics. Why?:
1)It would have brought Quebec back into Confederation in a legitimate sense. The constitution had applied legally to Quebec since 1982. But with Quebec excepting Meech Lake, it would have meant that Quebec symbolically endorsed the Constitution. Quebec would endorse Meech Lake because of the "distinct society clause" and because of the secured appointment of 3 SCC judges from Quebec
2) Once Quebec accepted Meech Lake, it would make it easier for the Feds to pout money into Quebec, and for Quebec to accept that money.
Meech Lake was defeated in June 1990 when the time limit for its ratification expired.
Newfoundland had rescinded its earlier ratification and Manitoba had yet to ratify the Accord.
In Manitoba’s case the ultimate blow came from an aboriginal MPP, Elijah Harper, who denied the government the unanimous consent necessary for an abridgment of the procedural rules. Harper became an advocate for a wide number of constituencies who were opposed to the Accord (e.g. aboriginal persons, women, Westerners, Easterners, Persons with Disabilities).
Many people felt that the Accord was drafted with only consulting the leaders of the governments and not other important bodies and that it only had the interests of Quebec in mind.