CANADA

Trudeau’s star turn

MARY JANIGAN September 7 1987
CANADA

Trudeau’s star turn

MARY JANIGAN September 7 1987

Trudeau’s star tum

CANADA

Sporting a red rose and a wry smile, Pierre Trudeau, private citizen, returned to Parliament Hill last week. As the star witness for the Constitu-

tion, the former prime minister went before a Senate-Commons committee—and a cheering audience—to scrutinize the fine print of the Meech Lake accord. His manner was cool, but magnetic, as he relied on relentless logic honed during 15 years in power. His message was simple, but powerful: the new constitutional accord will put the provinces in “remote control” of the federal government. “Toward one’s country, one’s nation, one’s people, there must be a loyalty greater than the sum of the loyalties toward the provinces,” Trudeau argued. Then he turned his fire on the Conservative government: “They obtained peace

how? By giving the provinces all they wanted. Yes, peace, but at what price?”

Trudeau’s dramatic appearance capped a week of mounting controversy over the 16-clause accord, signed on June 3 by Prime Minister Brian Mulroney and the 10 provincial premiers. Concerned that the proposals may threaten their hard-won equality rights, women’s groups across the nation last week mounted a tough, fullscale lobby to press for amendments. Meanwhile, a parade of witnesses before the constitutional committee predicted that the accord will create unexpected, and perhaps undesirable, political and social change. Although those witnesses often praised the accord’s intent —to win Quebec’s acceptance of the Constitution—they pleaded for more time and more amendments. As Andrew Cardozo, executive director of the Canadian Ethnocultural Council, told Maclean’s: “It is a very discomforting and disappointing silence—all three parties support the accord, and they do not want to discuss it. We are saying, ‘Sorry. Hold on. Let’s discuss it anyway.’ ”

It is too early to determine if that appeal will succeed. Because Parliament and all 10 provincial legislatures must ratify the accord before June, 1990, one dissenting province could scuttle it. Last week, as the pressure for change increased, the

first crack appeared in that unanimous front. At the premiers’ annual conference in Saint John, N.B., Ontario Premier David Peterson cited the women’s concerns —and refused to rule out amendments. “If there is diminution of women’s rights, then it should be rectified,” he declared.

Ottawa and the other provinces were less conciliatory. In June Quebec’s legislature became the first to approve the Meech Lake proposals, which limit federal spending power, extend provincial control over the Senate and Supreme Court, and recognize Quebec as a “distinct society.” Last week Quebec Premier Robert Bourassa flatly refused to re-open that agreement: “For me, the Meech Lake question is settled.” An hour after Peterson left the premiers’

meeting to return to Ontario, New Brunswick Premier Richard Hatfield said that the premiers are willing to meet with women’s groups to discuss their concerns. But, he added pointedly, “It is the agreement of the First Ministers that we are not going to make any major changes.”

Ottawa was equally adamant. When the constitutional hearings began last month, Senator Lowell Murray, the minister in charge of federal-provincial relations, offered to correct “egregious” errors—if all provinces consented to the proposed changes. Last week Murray flatly announced that there were no errors. Amendments, Murray added, would risk “unravelling the whole accord” and jeopardize the reconciliation with Quebec. Prime Minister Brian Mulroney was just as

tough: after a brief consideration of proposals to reform the Senate last week, he rejected amendments as “unacceptable.”

But Trudeau—in one of just a handful of public appearances since he left political life in June, 1984—argued forcefully that the price for peace with Quebec was too high for Canada (page 18). He pointed out that the federal government receives no new powers from the accord. Then he picked up a theme that has run like a thread through his political career: Canadians should be wary of constitutional arrangements that damage a strong central government. Said Trudeau: “The Canadian whole is more than the sum of its provinces.”

Then the former prime minister ex-

amined—and scathingly criticized—each of the concessions that Mulroney had made to the premiers. He dismissed clauses that require Ottawa to select senators and Supreme Court judges from lists of names supplied by the provinces: “It is remote control by provincial governments.” He castigated proposals that require the consent of all provinces for the creation of new provinces or for changes in such federal institutions as the Senate. “It is sad for Prince Edward Island,” Trudeau declared. “But it is true that 25 million Canadians can express their national will, and all it takes is 100,000 Canadians [in P.E.I.] to say, ‘You can’t.’ ”

Trudeau also criticized provisions that would allow provinces to receive compensation if they opt out of new shared-

programs in areas of provincial jurisdiction—as long as the province “carries on a program or initiative that is compatible with the national objectives.” The former prime minister depicted that spending power as a “powerful way of developing a national sense

of belonging.”

But Trudeau reserved his strongest remarks for the clause that has aroused the greatest controversy: the recognition of Quebec as a distinct society. That clause, he speculated, would destroy bilingualism because “Quebec will be French, Canada will be English.” And he claimed that the accord is condescending to French Canadians: “I honestly feel insulted when people patronize me.”

For Trudeau, the answer was clear: amend the accord. Parliamentarians, he said, have time on their side—and

few Quebecers are concerned about the province’s constitutional status. “Life goes on in Quebec,” he assured the committee. “They obey all the laws. They continue to pay tax.” Unconvinced, Manitoba Conservative MP Léo Duguay told Trudeau: “I do not share the vision of Canada that you are putting forth. You feel compelled

to put others down to make your point.” Replied Trudeau: “If the

Meech Lake people didn’t want to be criticized, they should not have done anything.”

Trudeau’s criticism came as women’s groups launched their own assault on the accord. When the agreement was

first signed, those groups expressed their criticisms in private meetings with politicians and in solemn testimony before the federal committee. But the tone of that debate became more heated in mid-August, when the Prime Minister’s Office (PMO) moved to counter growing support for their constitutional case. Under PMO pressure,

Conservative MPS such as Ottawa’s David Daubney abandoned their previous sympathetic positions. Mulroney, in turn, said that he shared the judgment of La Presse columnist Lysiane Gagnon, who dismissed the women’s concerns as a “Trojan horse” to attack Quebec’s gains in the Meech Lake accord.

Then, women’s groups began struggling to close the gap between Quebec women and women in other provinces. Key groups agreed that the distinct society clause should not affect the charter guarantee of equal rights for men and women. But as a member of the Ad Hoc Com-

mittee of Canadian Women on the Constitution told Maclean's: “We are agreed—but it is a fragile agreement.” Still, the lobbying began. At the federal level, the group concentrated on Barbara McDougall, minister responsible for the status of women, and on Liberal and New Democratic Party

MPs. At the provincial level, women targeted Manitoba Premier Howard Pawley, Ontario’s Peterson, Prince Edward Island Premier Joe Ghiz and, to a lesser extent, Newfoundland Premier Brian Peckford and New Brunswick’s Hatfield. Said Marilou McPhedran of the ad hoc committee: “Until the Prime Minister’s bigotry, we were conducting ourselves in a manner that indicated our good faith in the governmental process. Now we are mobilizing.”

While the women concentrated on the distinct society clause last week, Mulroney’s thoughts turned toward

Senate reform. Angered by the upper chamber’s attempt to amend a Commons bill to extend patent protection for multinational drug manufacturers, Mulroney proposed the abolition of the Senate: “We can reconstitute together a Senate, an elected Senate, which is much more representative of the people of Canada.”

That casual suggestion, offered during the daily Commons Question Period, caught the opposition off guard. But when Mulroney recognized that immediate Senate reform required amendments to the Meech Lake accord, he dropped his own suggestion.

While Mulroney cast a baleful eye on the Senate, witnesses before the constitutional committee concentrated on the distinct society clause.

That proposal stipulates that the role of Quebec’s

legislature and government is “to preserve and promote” its distinct identity. The role of Parliament and provincial legislatures, in turn, is “to preserve” Canada as a nation of Frenchand English-speaking Canadians.

Many legal experts say that the right to preserve and promote a distinct society could become another limit on the charter rights of individual Canadians, which were enshrined in the Constitution in 1982. Courts could limit the right of freedom of expression if it conflicted with Quebec’s right to promote its distinct society or the right of other legislatures to preserve Canada’s linguistic duality. Wayne MacKay, a law professor at Dalhousie University in Halifax, for one, told the constitutional committee on Aug. 5 that the accord could save the Quebec law requiring unilingual

French-language signs from any legal challenge. He added that Quebec could argue “that part of the promotion of a distinct society in Quebec necessitates the requirement that signs be in French only.” The province could also use the clause to extend its constitutional powers in fields such as communications.

The argument over the extent of Quebec’s new powers intensified when the Supreme Court of Canada ruled in June on the constitutionality of Ontario’s law to extend funding for Roman Catholic schools. A coalition of public

school supporters argued that the Ontario law violated such charter rights as freedom of religion. The Ontario government countered that Section 93 of the BN A Act guarantees the rights and privileges of denominational schools. All seven Supreme Court justices who heard the case supported the Ontario law. Madam Justice Bertha Wilson, in a judgment signed by three of her six colleagues, including Chief Justice Brian Dickson, stated, “It was never intended, in my opinion, that the charter could be used to invalidate other provisions of the Constitution, particularly a provision such as Section 93, which represented a fundamental part of the Confederation compromise.”

That decision appeared to subordinate the charter provisions to any constitutional clause that was seen as a “fundamental part of the Confedera-

tion compromise.” Because the Meech Lake accord inserts the “distinct society” clause into the BN A Act of 1867, some experts say that the distinct society provision might take precedence over charter rights in the case of conflicts.

To add to the unease of the women’s coalition, the Meech Lake accord stipulates that the distinct society provision should not affect multicultural or aboriginal rights. It does not mention other charter provisions, such as the guarantee that rights apply equally to men and women. Critics of the accord

point to a legal principle that says, in effect, that the mention of one topic may—by implication—exclude others. As a result, they said, the “distinct society” clause could take precedence over all charter rights—with the exception of ethnic and aboriginal rights.

Still, the women’s concerns may not be valid. William Lederman, a renowned constitutional expert from Queen’s University in Kingston, told the constitutional committee on Aug. 13 that June’s Supreme Court decision to limit the rights spelled out in the charter applies only to Section 93 of the BNA Act. Added Lederman: “The court is treating the denominational schools problem as unique.” Another eminent constitutional law professor, Gérald Beaudoin of the University of Ottawa, added that the distinct society clause may affect the interpretation of some charter rights “in some grey ar-

eas.” But, said Beaudoin, “it does not alter materially the division of powers and the charter of rights.”

But opponents painted a grim picture of the accord’s outcome. Dalhousie’s MacKay told the committee: “By singling out multiculturalism and native rights, the implication is that other [charter] sections clearly are affected.” Added former senator Eugene Forsey, a leading constitutional expert: “A reincarnation of [former Quebec premier Maurice] Duplessis might use the new [sections] to play all sorts of games with the fundamental freedoms or equality rights or mobility rights.” And lawyers Mary Eberts and John Laskin from the leading Toronto law firm Tory, Tory, DesLauriers & Binnington stated in a legal opinion last week: “The reference only to native rights and multicultural rights contributes in an unfortunate way to the development of a hierarchy of rights under the charter and the Constitution.”

For many Canadians, the sheer accomplishment of the Meech Lake accord far outweighs its risks. After five years of estrangement, Quebec has now accepted the Canadian Constitution—and the federal and nine provincial governments have, in turn, welcomed Quebec. As Murray told the constitutional committee last month: “Canada is the clear and undisputed winner in the current round of constitutional negotiations. The strengthening of our country, the reconciliation of Quebec, opportunities for economic policy co-ordination and future constitutional reform are all significant gains.”

But the committee hearings also underlined another aspect of the accord: the experts are dramatically divided over its effects. Quebec Liberal MP Donald Johnston noted last week that constitutions are designed to protect citizens from the worst governments— “and they must always look at the worst case scenarios.” The Meech Lake agreement may or may not affect the charter rights that guarantee protection from discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. It may, or may not, affect democratic, legal and mobility rights. It may, or may not, affect women’s rights. It may, or may not, increase the rights of provincial governments at the expense of individuals. Now, only the First Ministers can resolve those issues before the Meech Lake accord is carved in constitutional stone.

MARY JANIGAN

PAUL GESSELL

MICHAEL ROSE

KATHRYN HARLEY

John

BARBARA MacANDREW