The 25th Anniversary of the Charlottetown Referendum

This week marks the 25th anniversary of the Charlottetown referendum on October 26, 1992. This was a consultative national referendum to determine public opinion on a set of far-reaching constitutional amendments.

As an active participant in the constitutional debates stretching from 1987 to 1992, I believe the national referendum was exactly what was needed to defuse and bring closure to a fierce debate over extensive and controversial constitutional amendments. These amendments were initially presented as the Meech Lake Accord in 1987 by prime minister Brian Mulroney and the ten provincial premiers.

The proposed amendments were controversial because they seriously undermined the role of the federal government and eroded the Charter of Rights and Freedoms’ vision of equal citizenship and a Canada-wide civil identity. For too many Canadians, the decentralizing concessions demanded by the Quebec government (supported, unsurprisingly, by all the other premiers) were too high a price to pay for a largely symbolic vote of approval for the 1982 Constitution in the Quebec National Assembly.  (The 1982 Constitution is the fundamental law of the land everywhere in Canada, including Quebec, notwithstanding the regrettable fact that the then sovereigntist premier of Quebec, René Lévesque, refused to sign the final document. Seventy-two of 75 Quebec MPs in Parliament voted in favour of the changes and, since 1982, Quebecers have not hesitated to rely on the Constitution and our Charter of Rights and Freedoms, in the courts and elsewhere.)

The political leaders of all the major political parties closed ranks to support the executive agreement reached by the heads of federal and provincial governments. The Meech Lake Accord was presented to Canadians as a take-it-or-leave-it proposition. While legislative committees were established in all the jurisdictions to examine the Accord, most signatory governments had little trouble obtaining legislative majorities to pass the necessary ratification resolutions through their respective legislatures – despite the growing public concern.

The Quebec government led the way by approving the Accord on June 23, 1987 and triggering the three-year time frame set out in the Constitution for obtaining all the requisite ratifications (in this case, from all provincial legislatures, the House of Commons and the Senate). In so doing, they were following the anachronistic amending formula introduced as part of the Constitution Act, 1982 that only requires approval of federal and provincial legislatures, and excludes the possibility of directly consulting citizens.

Fortunately for the many Canadians opposed to the Accord, public debate intensified. Canadians protested through every outlet possible, both inside and outside the legislatures. In response, the proponents of the Accord increasingly resorted to fear-mongering, labelling opponents “dissidents” and “anti-Quebec” who wanted to weaken Canada. It was an exciting time of citizen mobilization.  I was involved in helping to build a multi-partisan coalition of opponents that endured through the three-year life of the Meech Lake Accord and beyond, to the Charlottetown referendum vote in October 1992. Our goal was always to criticize constructively and, wherever possible, present alternatives such as recognizing Quebec’s distinctiveness in the constitutional preamble so that the Charter would not be undermined.

In Parliament, the Senate stalled its ratification process and held lengthy committee hearings that were invaluable in providing an outlet for the growing opposition. (The Senate’s eventual rejection of the Accord was overridden by the House of Commons). Over the course of the ensuing three years, three new provincial premiers were elected who did not accept the Accords as is.  New Brunswick ultimately passed a futile companion accord to deal with some of the criticisms.  But the premier of Newfoundland and Labrador rescinded the initial approval of the legislature and cancelled a subsequent ratification vote. And the premier of Manitoba, heading a minority government, was all too happy to let the lone indigenous MLA, Elijah Harper, delay the vote beyond the expiry date of June 23, 1990.

After the failure of the Meech Lake Accord ratification process, rather than move on as many of his advisors suggested, Mulroney decided to try again. By August 1992, the new initiative led by Joe Clark had produced the Charlottetown Accord which appeared this time to garner not only the support of all premiers once again, but of the Aboriginal leadership as well. Mulroney then called a consultative national referendum to seek what he hoped would be such unambiguous support for the changes across Canada that expeditious ratifications by all the legislatures would follow easily.

Like the Meech Lake Accord, however, the Charlottetown Accord was an enormously complicated document containing changes to virtually every part of the Constitution – division of powers, federal spending power, mechanisms of executive federalism (first ministers’ conferences), Aboriginal self-government (at first thoughtlessly left out of the Meech Lake Accord), Senate reform, and special status for Quebec (the “distinct society”).  This is summarized in the pamphlet I co-authored in 1992 with Robert Howse entitled “No Deal”.

In order for the federal and provincial governments to proceed to entrench the Charlottetown Accord in the Constitution, it was generally accepted that the referendum question required at the very least the support of the majority of voters in seven provinces having 50 percent of the national population, if not provincial unanimity. This was consistent with the applicable constitutional amendment provisions in the Constitution Act, 1982.  The question on the ballot was: “Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992”?

The referendum legislation of 1992, which is still on the books, was flawed and rudimentary. For example, there were no financial controls on spending. Any Yes or No committee could spend $.564 per elector, which meant that the deep-pocketed federal-government-sponsored Yes committee outspent the No opponents by hundreds of thousands of dollars to one.

Fortunately, the referendum debate had been effectively five years in the making. The electorate were reasonably well-informed by the time of the vote and the huge imbalance in financial resources between the Yes and No sides had little impact on voters.

On October 26, 1992, the Accord was unambiguously rejected in Quebec and by a majority of voters in most other provinces (as well as First Nations) who turned out in very high numbers to vote.  Mulroney wisely withdrew the initiative.

Mulroney did the right thing in calling a consultative referendum. Enduring another lengthy legislative ratification process for the Charlottetown Accord was not an option. The referendum was the most expeditious and democratic mechanism available, and it proved effective in enabling citizens to mobilize on both sides in a condensed time frame.

Regrettably, since the Charlottetown referendum, a knee-jerk distrust of referenda has emerged among those in the Canadian political establishment who supported the Accords and were bruised by the ‘unsatisfactory’ outcome. They blame the referendum as too simplistic a mechanism that prevented Canadians from understanding the complexity and value of the Charlottetown Accord.

With respect, this is wrong. Canadians had a very good understanding of the Charlottetown Accord and seriously debated both the general impact, as well as its detailed legal provisions. Properly designed and executed, consultative referenda are entirely appropriate for gauging public opinion in a constructive way, even if they involve complex issues, and are an important tool for strengthening our representative democracy and enhancing citizen participation.

For a longer discussion, see Deborah Coyne “Expanding Direct Citizen Participation”, Part 4 of “Reform or Revolt: The Challenge to Canadian Democracy”.