Frank Iacobucci as Constitution Maker: From the Quebec Veto Reference to the Meech Lake Accord and the Quebec Secession Reference
I Introduction
Frank Iacobucci occupies a unique place in Canadian constitutional history. As a Justice of the Supreme Court of Canada for thirteen years, he played a central role in the development of Canadian constitutional jurisprudence. Yet prior to his appointment to the bench, he served as deputy attorney-general of Canada between 1985 and 1988 and was a principal member of the federal team in the negotiations over the Meech Lake Accord. This accord was not only a legal but also a political document, reflecting and advancing a view of Quebec's place in the federation and proposing a set of constitutional amendments that would have implemented that vision. Although the negotiations failed, we are arguably still living with the consequences of that failure today.
Does exploring Iacobucci's views on his role as constitution maker during the Meech Lake saga shed light on his subsequent career as constitutional interpreter on the bench? As Brian Dickson: A Judge's Journey1 reminds us, in the Canadian legal academy, biography is both an important and an underutilized source of insight on the judicial mind. In Iacobucci's case, his career prior to his judicial appointment is all the more valuable as a source of insight because of his central role in the politics of constitutional reform.
The natural place to explore this link is the case in which the Court was thrust into the heart of the national unity dispute – the Secession Reference.2 One of the most puzzling aspects of the judgment, which has thus far escaped attention, is its curiously selective account of constitutional history. We do not refer to the Court's partial description of [End Page 165] Canada's constitutional evolution, as one of us has done elsewhere.3 Rather, we draw attention to the Court's passing reference to the recent politics of constitutional reform. For nearly a decade – from the Patriation Round through the Quebec Round and the Meech Lake Accord, and the Canada Round and the Charlottetown Accord – Canada was consumed by a debate over the constitutive question of what the basic terms of the Canadian political community should be. As Iacobucci himself said to us in an interview for this article, the failure of Meech led 'to a string of consequences' including the 1995 Referendum and the Secession Reference itself. So situating the Secession Reference against the backdrop of the constitutional politics that gave rise to it should advance our understanding of the judgment. Given Iacobucci's central role in both episodes, his personal experience in the Meech process must have affected how he understood the politics that set the stage for the Secession Reference and, indeed, may have shaped the judgment.
But another reason to draw the link between Meech and the Secession Reference through Iacobucci is the Court's central role in the patriation process. In the Patriation Reference, the Court held that under the previous regime governing constitutional amendment, there was a constitutional convention that required substantial provincial consent to federal requests to Imperial authorities to amend the British North America Act.4 Nine of the ten provinces ultimately agreed to the patriation package, with Quebec in dissent. In a subsequent case brought by Quebec, the Veto Reference, the Court held that the convention of substantial provincial consent did not incorporate a veto for Quebec.5 Just as the federal government was attacked in Quebec for patriating the Constitution without the consent of Quebec...
