The Implications of Recognizing Quebec as a Distinct Society in the Constitution
PUBLIC POLICY SOURCES, NUMBER 7

by Melvin Smith, Q.C.

Contents

The Calgary premiers' meeting
On the nature of the Canadian constitution
A "distinct society" clause for Quebec?
Is there historical support for the "distinct society" notion?
What would be the effect of a "distinct society" clause?
A better way
About the Author

The Calgary premiers' meeting
At their recent meeting in Calgary, the nine federalist premiers embarked upon a process designed to engage the citizenry of Canada in still another round of national unity introspection. With contortions that would make Houdini green with envy, the premiers have avoided the dreaded "d" word (distinct society) in favour of the word "unique." Any good dictionary will show that the words "distinct" and "unique" are synonyms whose common meaning is "separate" or "without equal." Whichever word is chosen, the essential issue of Canadian federalism remains: how does one square the circle of the distinctiveness of Quebec on the one hand, with the concept of the equality of the provinces on the other? The premiers have attempted to "paper over" this difficult question with soothing words, but there is no doubt that when consultations begin, this question will be at the centre of the debate.

This paper suggests two ways in which these seemingly opposing concepts might be reconciled.

On the nature of the Canadian constitution

What would be the implications of putting a "distinct society" clause for Quebec in the Canadian constitution? I want to preface the answer to that with a few preliminary remarks on the nature of our constitution. Our written constitution consists essentially of two documents-the Constitution Act of 1867, and certain amendments that have been made to it over the years; about 20 amendments up until 1981. It used to be called the BNA Act. It's now called the Constitution Act 1867. In 1982 we passed some amendments to the constitution, and the Constitution Act of 1982 came along. It is much smaller, much less voluminous in scope. Why do I mention that? Because most people are under the misapprehension that the constitution was passed in 1982 and that it is the sum and substance of what governs us as a country. It's not so. The 1982 amendments were important. They added an amending formula giving instructions for changing the constitution in the future, should changes be required, and added amendments that incorporated a Charter of Rights and Freedoms, but they were amendments to the basic document which is, was, and still is the BNA Act of 1867, now called the Constitution Act of 1867.

There are three salient points to make about the constitution. First, it's difficult to change. Most constitutions of most countries are. There has to be a degree of stability in a country's constitution-not too much flexibility, not too much opportunity to change it easily. The amending formula that was agreed to in 1982 provides that most changes can be made with the approval of the legislatures of 7 provinces, if those 7 provinces comprise 50 percent or more of the Canadian population, plus the Parliament of Canada. That's the basic amending formula, what we call the 7-and-50 formula. So most of the changes and additions that we might want to make to the constitution have to receive the approval of at least seven provinces, and the federal government. As you can see, that requires a bit of doing. The constitution is not like an ordinary piece of legislation that can be readily altered.

Second, once something is added to the constitution, it is virtually impossible to remove it. Once it's in, it's there for good. Because of some of the decisions made by the courts on the Charter of Rights and Freedoms, some people have advocated that we should repeal the Charter. There are two schools of thought on that, but the fact of the matter is that it's virtually impossible to repeal the Charter. It will never happen. Once it's in, it's in.

Third, the meaning of the words in the constitution are determined by the courts and ultimately in this country by the 9-person Supreme Court of Canada. They determine what the words mean. The politicians may say, "Oh, we intend them to mean this," or they may try to assure us that they really mean something else. That counts for very little when matters get to the court and the words are under scrutiny. The judges have their own views as to what those particular words mean. Thus, it is very necessary to stress that the more general in nature the words, the more uncertain is the meaning that might be given them by the courts. We must be extremely careful in putting words in the constitution that we don't give the courts a blank cheque to interpret them according to the particular proclivities of the nine judges at any given time. What the politicians say the words mean, or are intended to mean, cuts little or no ice with the courts.

The three points to bear in mind, then, as I discuss the distinct society clause, are that it is difficult to change the constitution; once the provision is in, you can not get it out; and the constitutional provisions are susceptible to meanings to be given to them by the judges at any given time.

A "distinct society" clause for Quebec?

This paper will not talk about Quebec leaving Canada. That's another subject altogether. I'm not going to talk about the strategies we need (as indeed we do need them as we go ahead towards what seems to be a clear indication of another referendum in Quebec). I'm not going to talk about what happens if the vote is "yes" next time, and what should follow from that, and what the strategies of the federal government ought to be. Those are all legitimate questions, and there ought to be answers to them, but that isn't the subject that I'm addressing here. That, in common parlance, is called "Plan B," as in The Fraser Institute book by Gordon Gibson entitled Plan B: The Future of the Rest of Canada. In other words, if Quebec leaves, we're in a "Plan B" scenario.

I want to talk about "Plan A," a renewed federalism which assumes the continuation within the federation of the province of Quebec.

I want to discuss the proposition put forward by all the national parties, except the Reform Party of Canada, that the constitution should be amended by putting a provision within it that would describe Quebec as a "distinct society" and which would specifically require the courts to interpret the constitution accordingly. You hear very little about the second part of that. But do you understand? It's not just the provision of a distinct society in the constitution that is being advocated, but that there be an express provision in that clause requiring the courts to interpret the Canadian constitution in the light of the distinct society.

The spokesmen for the national political parties (with the exception of the Reform Party) argue that to put such a clause in the constitution would be to merely recognize the sociological fact that is Quebec; that is, that Quebec is the homeland of the French language and culture, and that Quebec has its own civil law which is distinct from the English common law. No one disputes these sociological facts. They are there for everyone to see, but that is irrelevant to the matter of whether this kind of a clause ought to be put into the constitution. The problem arises when you describe those sociological facts-civil code, French language and culture, their own denominational schools-with a broad brush definition, like "distinct society," and put these words into the constitution. If we put "Quebec is a distinct society" in the constitution, we are then asking the courts to give those words meaning.

Is there historical support for the "distinct society" notion?

Now make no mistake about it, the distinct society clause is the manifestation of the two nations concept of Confederation, the idea that Confederation was primarily designed to serve the ends of two language groups-French and English. Taken to its fullest, it would mean that Canada is not really a federation of 10 provinces at all, but consists instead of two societies, the one, the "distinct society" which is Quebec, and the other nine provinces combined to be the "other society" in Canada-two societies. Is there any support in our constitutional history for such a concept and such a proposition? What was the nature of the constitutional arrangement of 1867 anyway?

A perusal of the provisions of the Constitution Act 1867 gives little support to the theory that Confederation was based on a partnership between two founding races, two linguistic groups, and two cultures-English and French-to whose welfare Confederation should be primarily dedicated. I suggest that there is little support in the constitution for that proposition. In fact, there is strong historical support for the view that prior to 1867, Canada, which sought from 1840 to 1866 to accommodate an equal partnership between two unequal linguistic groups-French and English-proved to be a miserable failure. Out of the ashes of that miserable failure was to emerge the creation of the new Canada of 1867. What Georges Etienne Cartier, a Quebecker and one of the great Fathers of Confederation, described as a "new nationality, a diversity of races." In our own Federation, Cartier declared, "We should have Catholic and Protestant, English, French, Irish, and Scottish, and each by his own efforts and his success would increase the prosperity and glory of the new Confederacy." It was not a cultural compact at all. It was a great new nationality, a united nation, where language and culture played a part, but only a part, with all the other factors that make up a great country. That is why there's no ringing declaration in the BNA Act that Canada was to be a bilingual and bicultural nation. Nothing in the constitution of 1867 suggests bilingualism or biculturalism.

There is one important section in that Act on language, Section 133, which says that English and French may be spoken in the House of Commons and in the courts established by the government of Canada (i.e., the Supreme Court and the Federal Court of Canada) and that the two languages may be used in the National Assembly of Quebec-the Legislature of Quebec, in other words. That's the only provision in the BNA Act on the subject of language; that there be equality in its use in those limited institutions-Parliament, the National Assembly of Quebec, the Supreme Court of Canada, and the Federal Court. That was it, pure and simple. No right to deal with your federal government in the official language of your choice; in fact, it mentioned no such thing as an official language, much less any ringing declaration that English and French were of equal status. All that was to come much later, under the hand of Mr. Trudeau, with little constitutional basis for it, until certain provisions of the Charter of Rights and Freedoms in 1982.

If you look at the pre-Confederation debates before 1867, there was relatively little said about language. The three great French-speaking Fathers of Confederation-Cartier, whom I've mentioned, Langevin and Tache-repeatedly spoke of creating a great nation, a single great nation. I suggest to you that above all else, the Confederation was, as the preamble of the BNA Act states, a union of provinces, first Upper and Lower Canada which became Ontario and Quebec, added to which were Nova Scotia and New Brunswick, the four original provinces, with provisions for other colonies to be added, such as Prince Edward Island and British Columbia. Each of these provinces, British Columbia included-in fact perhaps British Columbia especially-brought with it a unique blend of geographic, economic, historical, political, social, cultural, demographic, and linguistic forces that go to make up its own distinct identity. Language is only one of many such characteristics.

So I suggest that there is very little historic support for the dualist concept. This was something that was hatched up in the '60s. The Tremblay Report in Quebec started it. The Bilingualism and Biculturalism Commission liked the idea, and they followed through with it as well. The NDP's 1961 founding convention embraced the idea, much to the chagrin of the late, great Senator Eugene Forsey. Senator Forsey was a socialist to the core. He was a charter member of the CCF, and a director of the Canadian Labour Congress. In 1961, when he saw in the constitution of the New Democratic Party this provision about a "distinct society" for Quebec, it was more than he could stomach. He said the idea was based on a historic fairy tale, and he ripped up his party card and left the party forever. I consider Eugene Forsey to be one of the greatest constitutionalists that Canada has produced.

There was little validity for this two-nation concept in 1867, and there's certainly less validity for it today. If the concept of two founding peoples is of dubious historical validity, and has little support in the original constitutional deal as I suggest is the case, contemporary realities in Canada dictate that it has even less relevance today, and is not a proper basis on which to renew our country's constitution for the twenty-first century. The fact is that there are over 13 million Canadians today whose ethnic origin is neither English nor French. We have many good Canadians from Eastern Europe, from Central Europe, and Western Europe, and from Pacific Rim countries. The idea that we're two founding nations based on English and French puts these people at a decided disadvantage and casts them as second-class citizens. So if there was any validity to the proposition in 1867, and I doubt that there was, there's far less today.

Donald Smiley was one of the great political scientists produced in this country. He taught at UBC for some years, and also at Toronto. In 1980, in a sober look at Canada's future, Smiley said, "There is an adequate foundation for a new political community in Canada, only if Canadians return to Cartier's vision of a political nationality not based on culture or ethnicity." He concluded that "the formulation of the Canadian Confederation, primarily or even exclusively in cultural ethnic terms, is inherently divisive and in the long run destructive of Canada." I agree with those words. I'm not unmindful of the richness and diversity brought to the fabric of Canada through the French language and culture. Long may it continue, but it ought not to be the compelling factor upon which we base the design of our country's constitution for the twenty-first century.

A country based on a vision of constitutional equality of the provinces with regional fairness, versus one based on a concept of the constitutional equality of two societies, is the issue which the Canadian people are facing in the days ahead.

What would be the effect of a "distinct society" clause?

What effect would a "distinct society" clause have if it were in the constitution? It is the height of naivety to suggest, as Messrs. Chretien and Charest suggest, that such a clause for Quebec would amount to nothing more than the constitutional recognition of the sociological fact that is Quebec. With a straight face, they attempt to persuade Canadians that to constitutionalize this clause would only confirm what we already know-that the French language and culture are the prominent social forces in Quebec-and that Quebec has its own legal system, the civil code. In fact, the implications of entrenching the concept are of far greater significance.

As a matter of fact, Messrs. Chretien and Charest won't take that line in Quebec. They won't say that such a clause is merely symbolic. They wouldn't dare. They'd be laughed off the stage, because a mere symbolic recognition in the constitution is not what Quebec nationalists are after. They wouldn't settle for a "distinct society" clause like that. They want a clause that will give them more legislative power than any other legislature in the country has. That's what this is all about. They say, "Oh, we need the `distinct society' clause to protect the language and culture and civil code." Why doesn't somebody get up and say, "Those three factors are already well protected in the constitution. They've been protected since 1867, and some of them were added in 1982." The French language and culture and civil code and the three judges on the Supreme Court of Canada from Quebec at all times, which is now in the constitution, cannot be changed without the approval of the Legislature of the National Assembly of Quebec. That's abundantly clear. There's no need to say, "We need a `distinct society' clause to protect our language and culture and civil law." It's a myth. They're already well protected by the constitution, and have been since 1867, and can never be removed without Quebec's concurrence.

What then is the real agenda behind the drive to include the words "distinct society" in the constitution? Well, it's manifold. First, it would diminish the individual charter rights of Quebeckers in favour of enhancing Quebec's collective rights as a distinct society. There would be a clash between the individual rights provided in the charter versus the collective rights that the distinct society clause would carry with it. I think under those circumstances that English-speaking Quebeckers would be particularly vulnerable. But more than that, and of concern to all Canadians, if that clause were in the constitution, it would probably be used by aggressive Quebec governments not as a shield to protect the French language and culture and civil code, but as a sword to carve out more jurisdictional areas unavailable to other provinces. For example, one can envisage Quebec establishing its own Radio and Television Commission, thumbing its nose at the CRTC and justifying the move as being necessary in the furtherance of its distinct society; or it might pass legislation over banking, and when that legislation is challenged, they will say in the courts, "Oh, this is a necessary ingredient for us. We have to have that because we're a distinct society."

This isn't mere mythology or supposition. I want to take you back to 1982 when we patriated the constitution in Canada. As you know, the province of Quebec was included in negotiations, but chose not to approve the package, so that nine provinces approved it, as did the federal government. At that time, there was no amending formula in the constitution. In 1982 the amending formula provision was added for the first time. Meanwhile, the Supreme Court had said that the patriation package could become effective if there was substantial provincial consent. Those were the key words: "substantial provincial consent." Well, the premiers and the prime minister thought that with the federal government and nine provinces aboard, surely that must constitute substantial provincial consent, and they went ahead. The proclamation was passed and the Queen came to Canada in April 1982, and the new constitution was patriated to Canada.

Almost right away, the government of Quebec, which at that time was a separatist government under René Levesque, brought court proceedings, first to the Court of Appeal of Quebec, and then to the Supreme Court of Canada, challenging the validity of the patriation package. They argued this: "We are a distinct society in Canada. You can't change the Canadian constitution unless you have our approval, because we are one of the two societies that exist in Canada, and therefore you can't go ahead without our approval." The Quebec Court of Appeal and the Supreme Court of Canada rejected that argument out of hand. They said, in effect, "Quebec may be distinct sociologically, but it has no juridical `distinct society' status, and we're not here to deal with sociology, we're here to deal with law and the constitution, so we're sorry, but you don't have a case."

I emphasize that to show you that if there is a "distinct society" clause in the constitution, an aggressive Quebec government will use it to the full to assert areas of jurisdiction which it does not now have. I have given you a couple of examples, but I could give you many more. Senator Forsey wrote on this. He said that the "distinct society" clause would give a wide range of powers to Quebec. He has suggested that it might include banking, as I have mentioned, along with copyright, patents, railways, telephone, highway transport, citizenship, and criminal law. You see, the Quebec government would merely pass legislation in these areas. These areas are now ones over which the federal government alone has exclusive jurisdiction, under our constitution. (I should have said, when I described the constitution, that one of the main elements of it in a Federation is to set out provincial powers over which the provinces can legislate, and federal powers that can be legislated only by Parliament.) If there were a "distinct society" clause, you would have an aggressive government in Quebec passing legislation in areas which up to then it did not have the legislative or constitutional power to legislate for, and then wait for the courts to decide whether or not to strike them down. They would argue, "But we need this for our distinct society. We need our own Radio and Television and Telecommunications Commission. We need to have foreign offices abroad, et cetera, because we have a distinct society and we've got to show our distinctiveness abroad," and on it would go. I call it "incremental separatism." Thus, at the end of the day, we may find that the separatists will have achieved within Canada what they hope to achieve by separating from Canada.

There is another implication of a "distinct society" clause, and that is the effect it would have on the federal government. I've suggested how it would be used by an aggressive government in Quebec, but what would it do to the attitude of the federal government? The federal government will be inclined to view Canada not as a number of regions with legitimate aspirations and needs, but rather as a country of two societies. In future, a monetary policy set by the Bank of Canada can be expected to be geared to the best interests of the two societies: where an economic policy is developed for the country based on similar considerations; where appointments to federal boards and commissions are based on equal representation from the two societies; where federal largesse in the form of regional development programmes and procurement policies is meted out on the basis of the two societies. Do you get it? One for Quebec and one for the other nine who will have to scramble among themselves for it. Some say this happens now, of course. But to give it constitutional sanction would be the death knell to regional balance and entitlement in this country.

It is not without significance that Claude Morin, former constitutional adviser to both Premiers Bourassa and Levesque, is reported to have said that the most significant provision of the Charlottetown Accord from Quebec's perspective was the "distinct society" clause.

In order to get it into the constitution, its supporters in the federal government need the approval of 7 provinces. Up to now, Mr. Chretien has not been able to attract the necessary provincial support. He introduced into the House of Commons on November 29, 1995, a resolution that would recognize Quebec as a "distinct society," not in the constitution but in the Parliament of Canada. He couldn't get it into the constitution without the requisite provincial support, but he introduced the concept of "distinct society" into the House of Commons. Mr. Manning introduced an amendment to it to provide that there would be nothing in the declaration of a "distinct society" that would in any way enhance Quebec's legislative powers. That was a very shrewd move on Mr. Manning's part, and it certainly flushed out the prime minister and the Liberal party, and tells us exactly where they're coming from; the government rejected that suggested rider and threw in their lot with the separatists and voted it down, and there the matter stands at the moment.

This sorry saga with the "distinct society" clause ought to be brought to an abrupt halt. It's time to throw this outmoded, deceitful, discredited, twice-rejected concept on the scrap heap of constitutional conferences past. We ought not to give Quebec a blank cheque in the form of the "distinct society" clause, not knowing what powers it entails. That's what that province would like; but it would be foolhardy to do it.

A better way

There is a better way to ensure that the legitimate constitutional aspirations of Quebec are met, but it must come in the context of adhering to the principle of the equality of the provinces. Eighty percent of Canadians outside of Quebec want no special deal for Quebec; about the same percentage of Canadians outside of Quebec are in favour of the transfer of powers to all the provinces, not just to Quebec, and I think this is where the answer may lie. How do we reconcile the claim to special status versus that of the rest of the country that holds to the view of the equality of each of the provinces? Now when we say "equality of each of the provinces," we don't mean in all respects. Those who challenge the equality provision say that all the provinces are different. They came into Canada under different terms, and so forth. BC got its railway and the Maritimes got the intercolonial railway, and some other province got this and some other province got that. Well, that's true. Those were incentives to bring the provinces into the Federation; but when we're talking about equality of the provinces, we're talking about the legislative power of each of the provinces being equal. That's the key. That's what equality of the provinces is all about-the legislative power of each is equal.

How do we reconcile these matters? One way would be through a significant decentralization of legislative power to the provinces that would satisfy a great deal the aspirations of the more reasonable Quebec nationalists. I don't think for a moment that anything that we do will appease or satisfy the hard core separatists in Quebec. There is no point even trying to satisfy them, because they have one objective, and that is the breakup of the country. But there's middle ground there. Ever since the 1960s, when Mr. Lesage became premier after Maurice Duplessis, and all down through the years, the unbroken refrain of successive Quebec governments has been: "We would like more legislative powers transferred from Ottawa to Quebec under the Constitution." That claim has largely gone unheeded. When Mr. Levesque had his referendum in 1980, Prime Minister Trudeau and all the premiers went to Quebec and said to the people there, if only you vote "no" we will see to it that the division of powers issue is addressed, once and for all. Well, it didn't happen and you can understand why there is still considerable dissatisfaction over it. We can transfer a significant number of federal powers to the provinces without unduly weakening the federal government. I believe in a strong federal government; but it ought to be limited in what it does to the core federal powers that are national in dimension and scope. The federal government is engaged in far too many matters that are essentially provincial in jurisdiction, and engaged in other matters that ought to be provincial in jurisdiction. So that we have overlap and duplication, both governments falling over one another on environmental protection, for example. Why is there a federal Department of Forests and Energy and Mines, when all the forests and all the energy resources and all the mines within the provinces belong to the provinces? Many departments in Ottawa should turn out their lights and close their doors.

The key is to identify the areas of jurisdiction that might be transferred to the provinces. As a general proposition, governments closest to the people are better equipped and are more efficient in delivering services to the people.

I believe that there could be a significant transfer of federal powers. We live in a highly centralized federation. The prime minister does everything between elections. He appoints the judges, not only in the Supreme Court but in all of the Superior Courts across the country. He doesn't have to ask anybody. There's no judicial review by a Senate Committee as there is in the United States. The prime minister appoints all the senators, which is an anathema to the federal principle. We are the only federation in the world where the senators are appointed by the central government, specifically, the prime minister.

I think we can meet a good deal of Quebec's aspirations by decentralizing powers to the provinces, but to all the provinces. I stress this because there are other provinces that want constitutional reform of this kind as well, particularly BC, Ontario, and Alberta. In order to maintain the equality principle, all the provinces must be offered these powers. Now they may not all take them up, or they may take up some of them, or not all of them, or they may need some help with equalization payments to take them up; but the important thing is that they all be offered the same deal as is extended to the province of Quebec. That's the only way you can maintain the principle of equality. In the end, it may be that some of the powers will not be taken up by some of the provinces. That is what in political science circles is called "de jure symmetry" but "de facto asymmetry." You offer the power, but realize that there may be some divergence. Now having got those powers, and I would include culture in this, you allow each province to flourish. We're not a homogeneous mass in this country. We're a country of regions with differences that cry out to be developed. We should cherish our diversity, not quell it. Unity in diversity. Also, we ought to give the provinces more opportunity to expand in the ways they wish to expand, and this is what decentralization of powers would do. That's one way out of the impasse.

Another way to permit Quebec to meet its special aspirations and yet maintain the equality of all the provinces would be to give Quebec its distinct society clause with the proviso that any fresh assertions of jurisdiction that Quebec would achieve through its use would be available to all the other provinces as well, if they chose to exercise them. For example, if by virtue of the distinct society clause Quebec passed legislation setting up its own regulatory body over communications, then other provinces could do the same. This innovative idea is the brain-child of Fraser Institute Senior Fellow Gordon Gibson. It is said that some of the premiers in Calgary were attracted to the idea.

I can foresee some practical difficulties in its implementation which may or may not be surmountable. Chief among them is the likely reluctance of the federal government to lose significant amounts of federal jurisdiction to the provinces. For, let's face it, the federal government might be willing to have Quebec alone acquire greater and more jurisdictions, but it is far from clear that it would countenance the divestment of significant powers, yet unknown, to all the provinces. This concept needs to be given more careful thought.

Above all, we need a fresh spirit of openness, frankness, and honesty on the part of our elected representatives. We've had too many politicians who say one thing, mean another, and do yet something else. We need leaders who will say the same thing at Shawnigan Lake as they do in Shawinigan, who will say the same thing in Sherwood Park, Alberta, as they do in Sherbrooke, Quebec, and who will say the same thing in Paris, Ontario as they do in Paris, France.

In this connection I must bring to your attention an article that appeared in the December 1, 1994 edition of the Paris newspaper Le Monde describing an interview that took place earlier that day. On May 11th of this year, Calgary Sun columnist Paul Jackson, who is the newspaper's associate editor and a reputable columnist, wrote a column bringing forward its contents. The person being interviewed said this: "Obviously, I would have been happier if Canada had not been conquered in the past by the English. If this part of North America had remained French . . . but you can't rewrite history." Columnist Jackson writes, "Now that's quite a statement." Isn't it? It's the kind of statement you might expect to come from a hard line Quebec separatist.

In the same Le Monde article, the individual being interviewed by two of France's top journalists is quoted as saying, "French Canadians are martyrs. They had been humiliated by the English." Jackson goes on, "I couldn't quite believe my eyes. I was actually so astonished by the comments and the man mouthing them that since my French is quite weak I got a professional interpreter to double check them." "Incredibly," Jackson says, "they are absolutely as I read them. Why do I say `incredibly'? Because they were not spoken by some member of the Bloc Quebecois or the Parti Quebecois, but by the current prime minister of Canada, Jean Chretien."

This is a gross misinterpretation of Canadian history, not conducive to national unity. We need a fresh spirit of openness among our leaders, and candidness and frankness on the part of our elected representatives. Constitutional propositions must not be put forward one way in one part of the country as meaning one thing, and something else in the rest of the country. You cannot build a united nation on that basis.

I fear that already, Quebec Liberal leader Daniel Johnson and others are reading things into the Calgary parley that are not there, and are thereby falsely raising expectations among Quebeckers. This latest foray by the premiers is a highly risky business. Past history has shown that too often these efforts lead to frustration and disappointment. And yet, sometimes doing nothing can have even more disastrous consequences.

MELVIN H. SMITH, QC, spent 31 years in the public service of British Columbia. A lawyer by profession, from 1967 until 1987 he was the ranking official on constitutional law and constitutional reform issues for four successive provincial administrations. He was a key player in the patriation of the constitution in 1981, and also served as a Deputy Minister for 13 years in various ministries until his early and voluntary retirement in 1991. A leader in the "No" campaign on the Charlottetown Accord, he now spends his time as a consultant, commentator on public issues, columnist for BC Report, and university lecturer. He is the author the of the Canadian best-seller, Our Home or Native Land? He lives in Victoria, British Columbia.