It haunts us still: After 25 years, Charter merits are subject of debate
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by L. IAN MacDONALD
The Gazette, Friday, February 16, 2007
On the morning of Sept. 28, 1981, the Supreme Court delivered a Solomon-like verdict in a famous constitutional reference on whether Ottawa could patriate the constitution from Westminster without the consent of the provinces.
By a 7-2 margin, the court ruled, legally, it could. But by a 6-3 margin, it also ruled constitutional convention required a "consensus of the provinces."
"What does it mean?" I asked Michel Robert, then known as the "silver-tongued advocate" of the Quebec bar, who had argued Ottawa's case before the high court.
"It means that, technically, we won," said Robert, standing at the top of the double staircase inside the Supreme Court building. "But, politically, it remains to be seen."
A quarter-century later, at the opening of the McGill Institute for the Study of Canada's Charter@25 conference, Robert recalled the historic decision resulting in the first ministers' conference of November 1981, which produced the Canadian Charter of Rights and Freedoms, proclaimed by the queen in April 1982.
"The court was telling the government to go back to the table with the provinces," said Robert, now chief justice of the Quebec Court of Appeal.
"C'est ca," agreed Roger Tasse, then deputy minister of justice, who was editor-in-chief of the Charter.
And what was "a consensus of the provinces" required by the court? Well, because it was a Westminster convention, it wasn't written down. It turned out the number of provinces required, as Jean Chretien later put it, was "more than two, but fewer than 10."
And that, 25 years later, remains a flashpoint and a sore point, in that Quebec has never signed the 1982 Constitution Act. Well, except at Meech Lake in 1987, but that's another story.
This was evident in the conference's opening session, in which Pamela Wallin moderated an Oprah-style round table of four backroom boys, three who were in the room, and one who wasn't.
Deal or no deal, that was the question. The three who were in on it were Tom Axworthy, then principal secretary to Prime Minister Pierre Trudeau; Eddie Goldenberg, then senior adviser to Justice Minister Chretien; and Hugh Segal, who ran the file for Ontario Premier Bill Davis. The one who wasn't was Louis Bernard, then secretary to the Quebec cabinet under Premier Rene Levesque.
"I am going to ring different bells than the others," Bernard said at the outset. He spoke of the "betrayal" of Quebec, compared the federal Charter unfavourably to the 1975 Quebec Charter, and concluded that 25 years later, there was nothing to celebrate.
Still bitter, after all these years.
For those then unborn, or those who have forgotten, the conversation, which Levesque would have called a dialogue of the deaf, recalled all the passions and divisions of those days.
The backroom boys also answered some important what-ifs. What if Joe Clark's minority government hadn't been defeated in 1979? Then, as Segal has pointed out, Trudeau would have remained in retirement, and there would have been no Charter.
It was left to Axworthy to recall how the deal finally came together: a straight-up swap, Trudeau's Charter in return for the provinces' 7/50 amending formula - requiring consent of Ottawa and seven provinces representing 50 per cent of the population.
But there was also a deal-maker: the notwithstanding clause. Without it, Alberta's Peter Lougheed, Saskatchewan's Allan Blakeney and even Bill Davis would have walked. Davis made this clear to Trudeau on the fateful night of Nov. 4, 1981, remembered in Quebec to this day as the "night of the long knives," when Quebec was excluded, isolated and humiliated.
What has been forgotten over time was that Levesque had spontaneously agreed at the closed-door conference to Trudeau's offer to put the whole patriation package to the people in a referendum.
None of us who was there will ever forget the gleam in Trudeau's eye or his words as he unexpectedly came to the microphone in the lobby of the National Conference Centre.
"And so you have a new alliance between the prime minister of Canada and the premier of Quebec," he said. "And the cat is among the pigeons."
Was it ever. The Gang of Eight dissenting provinces was instantly blown up, and the next night, nine provinces cut a deal, and one, Quebec went home empty-handed.
With consequences, for better or worse, that we are still sorting out to this day.