Some Thoughts On the Constitutional Battle

By Angelo Nikias

(The Chair of COPOH’s Human Rights Committee and a key figure in all of our recent constitutional activities, Angelo Nikias reflects on how we related to last fall’s Charlottetown Accord process and what the experience might ultimately mean for us.)

The decisive verdict of the Canadian people on October 26, 1992 has effectively brought to an end the current constitutional reform phase. While it is far too early to conclude that the constitutional question in Canada has been de facto resolved -- the next election in the Province of Quebec may prove such a conclusion premature -- some tentative conclusions can be drawn.

Insofar as the functioning of Canadian democracy is concerned, the main conclusion probably is that the political elites have been reminded, to their dismay, that the Canadian electorate is growing impatient with their practices. At a time of economic dislocation, Canadian governments have been told to get their priorities straight -- i.e., a deep economic recession means a real fall in the quality of life of non-privileged Canadians.

In the belief that Canada’s Constitution has become a tangible source of influence on public policy (and thereby a real factor in the lives of all Canadians, with disabilities and otherwise), we sought to intervene in the constitutional debate over the last two years. We believed that the rights of Canadians with disabilities, constitutionally expressed in S. 15 of the Charter of Rights and Freedoms, should not be weakened in any way. We were convinced that erosion of the cohesiveness of Confederation would have adverse effects on such policy areas -- of vital interest to Canadians with disabilities -- as social policy standards; we opposed constitutional arrangements that would tend to transfer power from the federal to the provincial governments. And, as a matter of principle, we expressed support for the constitutional aspirations of other disadvantaged groups such as the self-government option for the Native Peoples of Canada.

Our positions were put forward throughout the consultative process both in writing and through discussions with political leaders. During the final phase of that process, the phase that began after the publication of the Charlottetown Accord, we further increased our level of activity. This was due to the exclusion of persons with disabilities from the Canada Clause.

Whereas in the original proposal of the federal government (September, 1991, "Shaping Canada’s Future Together") the participation of persons with disabilities in Canadian Citizenship had been defined as a "characteristic of Canada", "disability rights" had been dropped altogether in the Charlottetown Accord. After painstaking legal analysis, we concluded that this very exclusion -- from a clause which explicitly protected the rights of other minorities and, even more, purported to be the interpretation authority of the entire Constitution including the Charter of Rights and Freedoms -- posed a potentially serious threat to the equality rights of Canadians with disabilities. Might not this Canada Clause tend to create a hierarchy of rights? In that case, the rights of Canadians with disabilities would necessarily command less protection than the rights of those minorities that had been specifically enumerated.

In response to this unacceptable situation, we set about informing Canadians with disabilities of our concern, communicating it as well to governments. Despite its complexity, Canadians with disabilities understood the problem. They swung into action as never before.

While not quite conceding the validity of our legal position, the Minister of Constitutional Affairs, and some other leaders too, did accept that our concern was not without political legitimacy. The Minister expressed his readiness to seek a solution. Meanwhile, our pressure was mounting.

Our position was that this exclusion was potentially harmful to our equality rights; that it was unfair to exclude people with disabilities, especially when we were first included in the Canada Clause. We demanded re-instatement. In acknowledging the legitimacy of our concern, most governments felt the pressure of the community and, as a result, made commitments to seek a solution.

Although the ultimate failure of the Charlottetown Accord made the solidity of these commitments untestable, we can be proud of the effort we mounted. It showed that Canadians with disabilities have the political sophistication and the organizational ability to intervene effectively in the political arena and defend their interests. The experience we gained will, no doubt, be useful in our ongoing effort to remove barriers to the full participation of Canadians with disabilities.

In my view, there is need for further analysis of the effort we made in relation to the Constitution. I think there are valuable conclusions relating to strategy and tactics to be drawn, and offer the following in that spirit: If the constitutional rights of Canadians with disabilities had been downgraded as a result of the Charlottetown Accord, it would have been because not enough Canadians with disabilities mobilized enough, early enough. If, on the other hand, we had succeeded to rectify the problem of exclusion, it would have been because many Canadians with disabilities became active enough during the last two months before the Referendum.

The involvement of Canadians with disabilities in the issues which vitally affect their lives is the responsibility of each one of us. However, a special role, regarding the facilitating of such participation, is borne by the national and other organizations which exist for that very reason.