1 For example, the federal government in late 1995 and early 1996 passed legislative acts which committed it to recognize a de facto veto for Quebec when it initiates constitutional reform measures, and which affirmed its informal recognition of Quebec's distinct society status. In the mid-1990s, provincial governments, including the pro-sovereigntist Quebec government headed by Lucien Bouchard, also strongly opposed any immediate resumption of discussions on formal constitutional change.

2 For example, see Manfredi, Christopher and Lusztig, Michael, “Amendment Over-load: The Politics of Constitutional Pluralism,” paper presented at the annual meeting of the Canadian Political Science Association, St. Catharines, Ontario, 1996.Google Scholar

3 On this latter point, see Young, Robert A., The Secession of Quebec and the Future of Canada (Montreal: McGill-Queen's University Press, 1995)Google Scholar, chap. 14.

4 The definition of these phases has been drawn from Russell, Peter H., “Towards a New Constitutional Process,” in Watts, Ronald L. and Brown, Douglas M., eds., Options for a New Canada (Toronto: University of Toronto Press, 1991)Google Scholar, and Pal, Leslie A. and Seidle, F. Leslie, “Constitutional Politics, 1990–92: The Paradox of Participation,” in Phillips, Susan D., ed., How Ottawa Spends: A More Democratic Canada…? (Ottawa: Carleton University Press, 1993), 146–51.Google Scholar

5 A “blended process” of constitutional reform involves the combination or fusion of elite bargaining and popular consultation and deliberation mechanisms during the different phases of formal constitutional change. For a fuller definition of this concept, see Stein, Michael B., “Tensions in the Canadian Constitutional Process: Elite Negotiations, Referendums, and Interest Group Consultations,” in Watts, Ronald L. and Brown, Douglas M., eds., Canada: The State of the Federation 1993 (Kingston: Institute of Intergovernmental Relations, 1993), 107–11.Google Scholar

6 Russell, Peter H., Constitutional Odyssey: Can Canadians Become a Sovereign People? (2nd ed.; Toronto: University of Toronto Press, 1993).Google Scholar

7 It might be argued, however, that the 1987 Meech Lake Accord was less complex than either the Victoria Charter of 1971 or the patriation package of 1980–1981.

8 Cairns, Alan C., “Citizens (Outsiders) and Governments (Insiders) in Constitution-Making: The Case of Meech Lake,” in Williams, Douglas E., ed., Disruptions: Constitutional Struggles, from the Charter to Meech Lake (Toronto: McClelland & Stewart, 1991), 111–12.Google Scholar

9 Stein, “Tensions in the Canadian Constitutional Process,” 97. These ideas are drawn in part from Young, Oran, “Regime Formation: Managing International Resources and the Environment,” International Organization 43 (1989), 361.CrossRefGoogle Scholar

10 See Stein, “Tensions in the Canadian Constitutional Process,” 97.

11 Under this arrangement, representatives of public and special interest groups, experts and private citizens are invited to present briefs and provide testimony before legislative committees that operate in an open and nonpartisan manner. See, for example, Brock, Kathy L., A Mandate Fulfilled: Constitutional Reform and the Manitoba Task Force on Meech Lake (Winnipeg: University of Manitoba Outreach Fund, 1990).Google Scholar

12 See, for example, Peter H. Russell, “Towards a New Constitutional Process,” in Watts and Brown, eds., Options for a New Canada, 150–56. For a critique of this mechanism, see Monahan, Patrick et al., Constituent Assemblies: The Canadian Debate in Comparative and Historical Context (Toronto: Centre for Law and Public Policy, York University, 1992).Google Scholar Many proponents of constituent assemblies also advocate their use in earlier (agenda-setting and negotiation) phases of constitutional reform.

13 My purpose in these two sections is not to provide a detailed historical account of the two constitutional rounds, but merely to summarize and evaluate briefly those aspects which are most pertinent to the theoretical and policy concerns discussed in Part 1. In order to do this, I have drawn on both confidential interviews conducted with leading government officials between 1989 and 1992 and on major academic and journalistic narrative reviews of these processes. The following interviews were conducted: Ontario government officials, Queen's Park, Toronto, September 28–29, 1989; Quebec officials, Quebec City, December 11, 1989, and Montreal, August 6, 1991; Newfoundland officials, St. John's, December 12, 1989; Nova Scotia officials, Halifax, December 13, 1989; New Brunswick officials, Fredericton, December 15, 1989, and June 23, 1992; Prince Edward Island officials, Charlottetown, December 18, 1989; Manitoba officials, Winnipeg, August 21–22, 1991, and Canadian government officials, Ottawa, May 9–10, 1991.

14 See Rémillard, Gil, “Rebuilding the Relationship: Quebec and Its Confederation Partners,” in Leslie, Peter M., ed., Canada: The State of the Federation 1986 (Kingston: Institute of Intergovernmental Relations, 1986)Google Scholar, Appendix, 97–105. The package included five major items, all of which were ultimately part of the Meech Lake Accord: a provision for formal constitutional recognition of Quebec as a distinct society; constitutional guarantee of increased powers for Quebec in matters of immigration; limitation of the federal spending power in areas of provincial jurisdiction; recognition of Quebec's right of veto in constitutional matters; and participation by Quebec in the nomination of judges trained in the civil law to the Supreme Court. These items were drawn from the moderate constitutional reform package contained in the Quebec Liberal party programme Maîtriser l'Avenir (Mastering Our Future).

15 See, for example, Cohen, Andrew, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Vancouver: Douglas and McIntyre, 1990)Google Scholar, chap. 4, and Monahan, Patrick J., Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991)Google Scholar, chaps. 3–4. The evidence from my own elite interviews strongly supports this characterization.

16 From interviews, Quebec City, December 11, 1989, and Montreal, August 6, 1991.

17 Interviews, Ottawa, May 9–10, 1991. See also Cohen, A Deal Undone, 92–94.

18 Ibid., 6–7; and Monahan, Meech Lake, 92.

19 For example, that the Accord was negotiated by “eleven men sitting around a table trading legislative, judicial and executive powers as if engaged in a gentlemanly game of poker, with little regard for the concerns of individual Canadians” (testimony by Deborah Coyne, a University of Toronto law professor and later an advisor to Premier Clyde Wells of Newfoundland on Meech Lake, to the joint Senate-Commons Committee hearings on the Meech Lake Accord, August 27, 1987, 14:8).

20 Based on interviews with various senior government officials, 1989–1992. See also Cohen, A Deal Undone, chap. 1. There was, however, less discord of this type at Meech Lake than at the Langevin Block, since most of the misgivings about the package emerged after the initial negotiations in April.

21 From interviews with federal government officials, Ottawa, May 9–10, 1991. See also Monahan, Meech Lake, 99–100. In pure zero-sum power terms, the federal government was undoubtedly the loser. However, the federal government may not have been viewed as an overall political loser in the negotiations if the benefits it derived from constitutionally integrating Quebec had been seen as offsetting its losses in political power.

22 See, for example, The 1987 Constitutional Accord, The Report of the Special Joint Committee of the Senate and the House of Commons (Ottawa: Queen's Printer, 1987), and Ontario Select Committee on Constitutional Reform, Report on the Constitution Amendment 1987 (Toronto: Queen's Park, 1988).Google Scholar

23 Perhaps the most important early critic was former prime minister Pierre Trudeau, who particularly targeted the distinct society clause for according Quebec special status. See Pierre Elliott Trudeau, testimony to the Senate-Commons Committee on the Constitution, August 27, 1987. See also Johnston, Donald J., ed., With a Bang, Not a Whimper, Pierre Trudeau Speaks Out (Toronto: Stoddart, 1988).Google Scholar

24 See Coyne, Deborah, Roll of the Dice (Toronto: James Lorimer, 1992)Google Scholar, chap. 10; Monahan, Meech Lake, chap. 8; and Cohen, A Deal Undone, chap. 10.

25 Pal and Seidle actually divide this phase into two separate periods, which they call the “cathartic phase” and the “consultation and agenda-setting phase” (Pal and Seidle, “Constitutional Politics,” 148–54).

26 Jeffrey, Brooke, Strange Bedfellows, Trying Times (Toronto: Key Porter, 1993), 42.Google Scholar

27 Campbell, Robert M. and Pal, Leslie A., The Real Worlds of Canadian Politics: Cases in Process and Policy (3rd ed.; Peterborough: Broadview Press, 1994), 156.Google Scholar

28 According to Pal and Seidle, these hearings were managed, for the most part, in an open, flexible and nonpartisan fashion, and produced well-thought-out and occasionally creative ideas (“Constitutional Politics,” 152–53).

29 Ibid., 153. The regional policy forums were held in five major Canadian cities in January and February 1992. The recommendations of these forums served as the basis of the committee's final report.

30 See A Quebec Free to Choose, Report of the Constitutional Committee of the Quebec Liberal Party (Allaire Committee Report), January 28, 1991, chap. 3, and Report, Commission on the Political and Constitutional Future of Quebec (Belanger-Campeau Commission), March 22, 1991, chaps. 6–8.

31 The existence of such a plan is detailed in both Campbell and Pal, The Real Worlds of Canadian Politics, 170, and Jeffrey, Strange Bedfellows, 52.

32 These terms were coined by Donald Smiley and J. Stefan Dupré respectively. The former refers to “the relations between elected and appointed officials of the two orders of government in federal-provincial interactions, and the executives of the provinces in interprovincial interactions” ( Smiley, Donald V., Canada in Question: Federalism in the Eighties [3rd ed.; Toronto: McGraw-Hill Ryerson, 1980], 91).Google Scholar The latter applies to intergovernmental consultations and negotiations conducted largely or exclusively by first ministers ( Dupré, J. Stefan “Reflections on the Workability of Executive Federalism,” in Olling, R. D. and Westmacott, M. W., eds., Perspectives on Canadian Federalism [Scarborough: Prentice-Hall, 1988], 243).Google Scholar

33 For example, they expanded the delegations to include the relevant ministers or first ministers of the two territorial governments, and invited representatives from Aboriginal governments to join them when issues pertaining to that group were being discussed. Bargaining was often conducted at the ministerial rather than first ministers’ level, thereby creating a more informal negotiating environment. And they attempted to establish more open lines to the media.

34 Although according to Patrick Monahan et al., the federal government did not “rule out the possibility of convening a constituent assembly sometime following the report of the Joint [Beaudoin-Dobbie] Committee” (see Monahan, Patrick, Covello, Lynda and Batty, Jonathan, Constituent Assemblies: The Canadian Debate in Comparative and Historical Context [Toronto: York University Constitutional Reform Project, Osgoode Hall Law School, 1992], 2).Google Scholar

35 Campbell and Pal, The Real Worlds of Canadian Politics, 170.

36 On this point see Stein, Michael B., Canadian Constitutional Renewal, 1968–1981: A Case Study in Integrative Bargaining, Research Paper No. 27 (Kingston: Institute of Intergovernmental Relations, Queen's University, 1990), 38–39.Google Scholar

37 See, for example, Russell, Constitutional Odyssey, 197. But compare with Jeffrey who adopts a more sceptical attitude about this alleged integration between the Beaudoin-Dobbie Committee recommendations and subsequent executive federal negotiations (Strange Bedfellows, 51–52).

38 Russell, Constitutional Odyssey, 192. Most notable in this respect were the proposals for increasing representation for the more populous provinces (particularly Ontario and Quebec) in the House of Commons, the option of allowing senators to be elected by provincial legislatures (such as the National Assembly of Quebec), rather than the provincial citizenry at large, and the guarantee of a 25 per cent floor in representation for Quebec in the House of Commons. The last item has been aptly described as “a rabbit pulled out of a hat” which acted both as a “deal-maker” and a “referendum breaker” (ibid., 226).

39 For example, the agreement struck first at the Pearson Airport Hotel in Toronto on July 7, 1992, and later firmed up at the Pearson Building in Ottawa, resulted from a classic Canadian compromise: Premier Bob Rae of Ontario agreed to accept the idea of an “equal” Senate in return for acquiescence by several of the western and Atlantic provinces in the granting of a limited constitutional veto for Quebec.

40 For a more detailed discussion of how the process of “integrative bargaining” operates in Canadian constitutional negotiations, see Stein, Canadian Constitutional Renewal, 33–42. This concept is drawn from theorists of negotiation such as Walton and McKersie, and Pruitt. See Walton, Richard and McKersie, Robert B., A Behavioral Theory of Negotiations (New York: McGraw-Hill, 1965), 5Google Scholar, and Pruitt, Dean G., Negotiation Behavior (New York: Academic Press, 1981), chaps. 5–6.Google Scholar

41 Campbell, and Pal, , The Real Worlds of Canadian Politics, 150. Campbell and Pal also note that after July 7, 1992Google Scholar, “the two tracks began to intersect, [but] they were carrying different freights” (172).

42 For an excellent, detailed discussion of the various aspects of this Clark-Mulroney disagreement during the Charlottetown constitutional process, see Delacourt, Susan, United We Fall: In Search of a New Canada (Toronto: Penguin, 1994)Google Scholar, chap. 2.

43 According to Jeffrey, “Clyde Wells and others [had] argued that the package was too large for one question, and should require multiple answers, or at the very least be divided into two sections with two answers (one for the parts of the accord requiring unanimity to be implemented, and one for the parts that could be passed if seven provinces with 50% of the population approved)” (Strange Bedfellows, 157). But this proposal evidently fell on deaf ears.

44 It extended from August 28 to October 26, 1992, a period of just under two months, and involved only two simultaneous and coordinated but separate non-binding referendum campaigns, one in Quebec and one in the rest of Canada.

45 Boyer, Patrick, Direct Democracy in Canada: The History and Future of Referendums (Toronto: Dundurn Press, 1992), chaps. 1, 4 (212)Google Scholar; and Butler, David and Ranney, Austin, eds., Referendums Around the World (Washington: American Enterprise Institute for Public Policy Research, 1994)CrossRefGoogle Scholar, Appendix A (Nationwide Referendums, 1793–1993). The decision to set such a high threshold was based partly on a desire to avoid the divisive result of the two earlier referendums in Canadian history on local prohibition (1896) and conscription (1944). Hurley also notes that “as a political matter [rather than as a decisional rule] it was agreed among leaders that the Charlottetown Accord would have to be supported in all provinces in order to pass,” and that “this issue will have to be addressed each time the option of a national referendum is raised” ( Hurley, James Ross, Amending Canada's Constitution: History, Processes, Problems and Prospects [Ottawa: Ministry of Supply and Services, 1996], 158).Google Scholar

46 They were the only two jurisdictions that required that a referendum be held prior to passage of a constitutional amendment. Two other provinces, Quebec and Newfoundland, as well as the federal government, had adopted optional procedures for conducting such a referendum (see Hurley, Amending Canada's Constitution, 160–61).

47 See, for example, Boyer, Patrick, The People's Mandate: Referendums and a More Democratic Canada (Toronto: Dundurn Press, 1992), 40–49Google Scholar, for a discussion of these benefits. See also Butler and Ranney, Referendums Around the World, 11–17.

48 Boyer, Direct Democracy in Canada, 242–43. This was particularly true in the Quebec referendum, where tighter rules were established on such activities.

49 Overall, 44.8 per cent of the voting population in Canada supported it and 54.2 per cent rejected it. It won support in only four provinces and one territory: New Brunswick, Newfoundland, the Northwest Territories, Ontario (very narrowly) and Prince Edward Island. It was narrowly defeated in Nova Scotia, and defeated by substantial margins in Quebec, Manitoba, Saskatchewan, Alberta, British Columbia and the Yukon (see Jeffrey, Strange Bedfellows, Appendix A, 234).

50 Boyer, Direct Democracy in Canada, 69–70. The turnout rate was 75 per cent, or about the same level as for most recent federal elections. In most other countries, according to Butler and Ranney, the turnout rate in national referendums is considerably lower than in general elections. See Butler and Ranney, eds., Referendums Around the World, 5–6, 16.

51 These deficiencies are discussed in Boyer, The People's Mandate, 49–54, and Butler and Ranney, eds., Referendums Around the World, 17–21.

52 See Jeffrey, Strange Bedfellows, chap. 7, for an extended discussion of these weaknesses.

53 Some tend to view these two processes as mutually exclusive. See, for example, Boyer, The People's Mandate, 159.

54 For an example of this line of argument, see Richard Johnston, “Comment: Deliberation, Participation and the Constitution,” Comment on the Review by Howse, Robert, Ottawa Law Journal 26 (1994), 511–16.Google Scholar He argues, “For all the weight voters attached to the choice [in the Charlottetown Accord referendum] they were not invited to help shape the alternative to the status quo, just to pronounce on one highly bundled, preformulated measure” (511).

55 This approach has been adopted in some international relations forums or workshops, such as that of Oslo in the recent Israeli-Palestinian negotiations, or Dart-mouth in the American-Soviet negotiations. For a description of the role played in elite negotiations on international issues by such citizen-based structures, see Stein, Janice Gross, Cameron, David R. and Simeon, Richard with Alexandroff, Alan, Citizen Engagement in Conflict Resolution: Lessons for Canada in International Experience (Toronto: C. D. Howe Institute, 1997).Google Scholar

56 For example, it might have been advantageous to conduct the various federal, provincial and territorial hearings in the agenda-setting phase of the Charlotte-town process around a number of related agenda items derived from both the federal government's proposals of September 1991 and some of the provincial or territorial proposals. The established interest groups might also have been able to play a useful consultative and coordinating role in such hearings. For a discussion of these hearings and the important role played in them by interest groups, see Brock, Kathy L., “Reflections on the Constitutional Process: Does More Inclusive Mean More Effective and Representative?” paper presented at the annual meeting of the Canadian Political Science Association, Ottawa, 1993Google Scholar, and Brock, Kathy L., “Lifting Impressions: Interest Groups, the Provinces and the Constitution,” October 1995.Google Scholar

57 Stein et al. describe a somewhat different and even more open process of citizen engagement that occurred at the negotiation stage of constitution making. They note that in the negotiation of the South African constitution, different drafts of the constitution were made public and presented to the citizens for their reaction. Contributions could be made by the citizens directly to the drafts, particularly in sections embodying disagreements, omissions or incomplete text. There was also a brochure distributed to the public entitled Constitutional Talk that explained what issues lay behind these constitutional conflicts and gaps. See Stein, Cameron and Simeon with Alexandroff, Citizen Engagement, 9.

58 Such a federal-provincial co-chair was established during the summer 1980 ministerial discussions on constitutional reform. The co-chairs during these talks were then federal Justice Minister Jean Chrétien and then Saskatchewan Attorney-General Roy Romanow.

59 In fact, some commentators argued that there were far too many negotiating participants, advisors and experts, and agenda items at this phase of the Charlotte-town process to permit meaningful and effective bargaining. In future constitutional negotiations, however, it might be possible to establish smaller working constitutional groups on specific items, along the lines of cabinet committees in normal governmental policy matters.

60 Fen Hampson has provided a good explanation of the negotiating problem here. He argues: “When the numbers [of participants and issues] are large, it becomes more difficult for negotiators to identify potential trade-offs and relevant concessions. Complexity also increases communication and information-processing difficulties. Parties are required to handle large amounts of information, and to respond to a complex and competing array of interests [which can] create confusion or mixed signals, generate distrust and lead to misinterpretation.” See Hampson, Fen Osier with Hart, Michael, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment (Baltimore: Johns Hopkins University Press, 1995), 29.Google Scholar

61 Such as the provisions for Aboriginal self-government and the 25 per cent floor for representation from Quebec in the House of Commons. This weakness might be reduced in the future by using the proposed panel of influential citizens and experts as an intermediary to “test” imprecise or new constitutional items with citizen groups.

62 Hurley aptly characterizes this process of adding to the regular negotiating representatives on matters which involve particular groups as “extended executive federalism” (Hurley, Amending Canada's Constitution, 151, 162, 164).

63 As suggested in note 59 above.

64 Stein et al. propose a more complex and elaborate process for generating citizen engagement in the national unity conflict, involving not only influential citizens, experts and community groups, but also established voluntary associations and networks. See Stein, Cameron and Simeon with Alexandroff, Citizen Engagement, 9ff.

65 See, for example, the discussion paper by the Federal-Provincial Relations Office entitled “Amending the Constitution of Canada: A Discussion Paper” (Ottawa: Minister of Supply and Services, 1990), 12Google Scholar; the Beaudoin-Edwards Committee, Report: The Process for Amending the Constitution of Canada (Ottawa: Queen's Printer, 1991), 55Google Scholar; and Hurley, Amending Canada's Constitution, 156. It should be noted that in such a process the lines between constitutional negotiation and ratification become somewhat blurred.

66 This technique allows a negotiating party to opt out of a particular provision of the accord if its acceptance generates strong public opposition in its particular constituency. It does not, however, allow the entire accord to be amended or renegotiated. It may also be accompanied by a mechanism for “opting in” to that provision at a later date.

67 See, for example, the discussion of this device in Watts, Ronald L., Reid, Darrel R. and Herperger, Dwight, Parallel Accords: The American Precedent, Research Paper No. 28 (Kingston: Institute of Intergovernmental Relations, 1990), 52–68.Google Scholar

68 I am grateful to Dennis Baker for this proposal. For a rather different view on this issue, see Hurley, Amending Canada's Constitution, 153, 156.

69 For example, Hurley notes that “There is nothing to prevent governments from reaching agreement on a much shorter ratification period than that specified in the Constitution. They could, for example, agree to bring the matter to a vote within six months” (Hurley, Amending the Constitution, 163). The Beaudoin-Edwards committee also proposed that the time limit for ratification be reduced from three to two years (see its Report, 31).

70 According to one government official who participated in the Charlottetown process, this type of breakdown of voting majorities required for legislative ratification of each item in the constitutional package was actually carried out by federal government officials after the signing of the Charlottetown Accord. However, due to the clear rejection of the Accord in the subsequent referendum, the nature of the breakdown was never disclosed. I am grateful to F. Leslie Seidle for this point. See also Campbell and Pal, The Real Worlds of Canadian Politics, 176.

71 Interviews with provincial legislators who served on this task force and with its nonpartisan chair, Winnipeg, August 21–23, 1991. For a detailed discussion of its achievements, see Brock, A Mandate Fulfilled. For a more sceptical view of the need for public hearings at the provincial level and of the role of interest groups in such hearings, see Federal-Provincial Relations Office, Amending the Constitution of Canada, 12.

72 See, for example, Boyer, The People's Mandate, 49–54.

73 Hurley points out, however, that “If a national referendum were held by the federal government alone or by the government in collaboration with one or more provinces… on a legal text the need for hearings on the amendment resolution would diminish rapidly.” He argues that in this case, “perhaps hearings to ensure there was no egregious error in the text would be useful, but the policy issues would be settled by the people in the referendum” (Hurley, Amending Canada's Constitution, 158).

74 On this point, see the reference to Clyde Wells's proposal in note 43 above. See also Hurley, Amending Canada's Constitution, 158–59.

75 This proposal was made by Rosemary Speirs in The Toronto Star, June 18, 1996. Hurley argues, however, that “there is no clear answer [to how high or low a threshold should be adopted]. It depends in part on the nature of the amendment” (see Hurley, Amending Canada's Constitution, 158).

76 See Russell, Constitutional Odyssey, 191. However, it should also be clear that public input and deliberation would be considerably greater at the top end of the hourglass (the agenda-setting stage).

77 A minor multilateral amendment on Aboriginal rights, the 1983 Constitutional Accord, was passed in 1983. It expanded Aboriginal rights to apply to existing and future land claims and guaranteed that Aboriginal rights protected under s. 35 of the 1982 Constitution Act would apply equally to both sexes. It also provided for at least two further first ministers’ conferences on Aboriginal rights prior to April 1987. See Hurley, Amending Canada's Constitution, 91.

78 For a strong expression of this point of view, see Peter H. Russell, “Canada's Mega Constitutional Politics in Comparative Perspective,” paper presented at the XVIth World Congress of the International Political Science Association, Berlin, 1994.

79 This proposal was made by F. Leslie Seidle in a communication to the author, August 1995.