Canada

A SUPREME DILEMMA

A judge's retirement raises the national unity stakes

Anthony Wilson-Smith September 8 1997
Canada

A SUPREME DILEMMA

A judge's retirement raises the national unity stakes

Anthony Wilson-Smith September 8 1997

A SUPREME DILEMMA

Canada

A judge's retirement raises the national unity stakes

BY ANTHONY WILSON-SMITH

Say, heard the one about the Newfoundlander who wants to become a Supreme Court of Canada justice? Forget all responses involving corny, tired attempts at humor: the proper answer is that the person in question should be a current resident of The Rock, a lawyer and jurist of unblemished character, bilingual and well versed in all aspects of criminal and civil law. Finally, being a woman would be a distinct asset. Anyone possessing those qualifications should immediately apply for the position. By doing so, she, or he, could make a dream come true—if not their own, certainly that of Prime Minister Jean Chrétien, who suddenly and desperately seeks a candidate fitting those or similar specifications.

Of all the things the federal government did not need heading into an already busy fall, the resignation of Supreme Court Justice Gérard La Forest last week would be high among them. As with almost every other dilemma that confronts Chrétien and his newly re-elected government, the reason for dismay revolves around national unity. “It would make for a great horror movie monster,” sighed a senior cabinet minister. “No matter how many times you chase it away, it keeps coming back in new ways.”

New Brunswick native and francophone La Forest,

71, stepped down for a combination of age and other personal considerations. His decision, delayed by difficulties in selling his Ottawa house in a flat real estate market, had been expected. But many people in the legal community thought he would stay on at least until the federal government’s Supreme Court challenge to Quebec’s self-declared right to unilaterally declare independence could be heard. Although La Forest was well regarded, his departure would not normally evoke such concern: prime ministers traditionally consider the chance to appoint a new Supreme Court judge as one of their few opportunities to put a longlasting stamp on the country’s highest legal body.

But the upcoming Quebec case—the court last week tentatively agreed to set aside Dec. 8 to 10 to hear arguments on either side—has given new urgency to the search for a successor. The new nominee, who should, in order to meet a complex combination of professional, traditional and regional criteria, come from one of the four Atlantic provinces, will play a key role in that politically fraught decision. The ideal choice would come from Newfoundland, although legal experts say the government could also satisfy precedent with a nominee from Prince Edward Island, Nova Scotia or New Brunswick. Because of the need to proceed on a long backlog of cases, a nomination will likely come as early as this month.

Amid those worries, other factors have helped to push the unity is-

sue to national centre stage. Among them: the ongoing fuss over a Toronto psychiatrist’s barbed analysis of Quebec Premier Lucien Bouchard, a blunt exchange of letters between Quebec deputy premier Bernard Landry and federal Intergovernmental Affairs Minister Stéphane Dion, and an upcoming special meeting of the premiers. That means that the fall political agenda, including the opening on Sept. 22 of what is likely to be the last Parliament of this millennium, will again be dominated by sharp disagreements over the country’s future.

Take the premiers’ meeting on Sept. 14 and 15. Take it anywhere, in fact, that is far from the eyes of Chrétien and his advisers, who privately would prefer it not take place at all. The nine English-Canadi-

an premiers—Bouchard refuses to attend—are meeting in Calgary to discuss ways of “rebalancing the federation” that would better satisfy Quebec—and themselves. Officially, the federal government welcomes the idea. “Anything that shows Quebecers and other Canadians the possibility of efficient reforms is a good thing,” Finance Minister Paul Martin told Maclean’s in an interview.

But Chretien’s advisers are annoyed that the federal government is not invited, and consider that most of the potential consequences of the premiers’ effort will be negative. On the one hand, said a Chrétien adviser, “if they meet and can’t agree on things, it’s just one more example for the sovereigntists to use on the impossibility of reform.” On the other hand, the adviser added, “even if they do agree on a program of reform, it might involve so much devolution of federal powers to the provinces that it would be impossible for us to agree. And then if we refuse, it still strengthens the sovereigntists’ hand.”

Not everyone is so negative. The Reform party, despite its continuing insistence that too much time and effort are devoted to Quebec’s constitutional demands, welcomes the premiers’ initiative. “The key to making everyone happy is to ensure that all powers offered to any one province are offered to all other provinces,” said Reform MP Rahim Jaffer, one of the party’s team of constitutional critics. “Not every province wants every power, but each should have the choice left up to them. And if the premiers are conducting discussions on that basis, we are all for it.” Similarly, Progressive Conservative Leader Jean Charest also praised the premiers’ efforts, although for different reasons. “The best way to win another Quebec referendum,” Charest told Maclean’s, “is to not have one. If the premiers can demonstrate before another Quebec election that federalism is renewable, that will help get the PQ defeated—and save all that trouble.”

The Liberals, after adopting a more conciliatory attitude towards the Parti Québécois government in the period following the October, 1995, referendum, are now taking a harder line. Part of the reason is frustration that their previous efforts bore little fruit at the polls: despite a poor campaign by the Bloc Québécois, the Liberals won a mere 26 seats in the province in the June election, only seven more than the 19 they took in 1993. But at the same time, they now believe that the PQ, with its own popularity problems as a result of deep spending cuts, may be vulnerable as well. (A Groupe Léger & Léger poll released late last week showed that support for sovereignty had dropped to 45.4 per cent, compared with 54.6 for the No side—the highest level since well before the October, 1995, referendum. Experts said the results were in large part due to unhappiness with the PQ government.) A hardline federal stance also strikes a chord in the rest of Canada, and helps the Liberals in their efforts to undercut the popularity of Reform, which will be increasingly prominent in its new role as Her Majesty’s Loyal Opposition.

There is no shortage of examples of the Liberals’ increasingly bellicose attitude. They showed little remorse over the recent revelation that Toronto MP John Godfrey asked psychiatrist Dr. Vivian Rakoff to compile an analysis of Bouchard. Godfrey passed on the unflattering report to Chretien’s office, although Chrétien insisted he never saw it. An infuriated Bouchard termed the entire effort a “low blow,” and editorial reaction in the province’s French-language media was unanimously condemnatory. But Chrétien, during a visit to Vancouver last week, shrugged off the importance of the report by saying he was subjected to similar analyses of his character after he manhandled a protester in early 1996. Other senior Liberals also downplayed the incident, insisting it would quickly blow over—

and by the end of last week, that appeared to have happened.

Another sign of a hardened stance on Quebec has come from Human Resources Minister Pierre Pettigrew, normally regarded as a dove on federal-provincial relations. In August, he rejected Quebec’s demands for more federal money and control of parental and maternity benefits in the province. And last week, Dion, for the second time, warned the PQ in an open letter that any attempt at Quebec secession could only take place following the establishment of mutually agreed-upon rules. That letter came as a response to Quebec’s Landry, who had written an annoyed reply to an earlier, similar missive from Dion to Bouchard. “You conclude,” Dion wrote Landry in a four-page letter, “that it would be absurd if it were more difficult to leave Canada than to enter it. It is in no way absurd.”

The province’s independence, Dion warned, could only take place

if Quebecers voted on a clear, unambiguous question—one on which both federalists and separatists agreed. In addition, he said, the new nation of Quebec could only be formally recognized internationally if Canada did so first. Even then, Dion observed, there are no guarantees that Quebec’s present borders would be maintained. “It may be that in the difficult circumstances of negotiating secession, an agreement on modifying borders would become the least unfavorable solution,” Dion wrote. “Our fellow citizens must be aware that such things can happen.”

That letter was followed by another open letter from Fernand Chalifoux, the grand chief of the Native Alliance of Quebec, who insisted that natives have a veto right over any attempt to take their territories in the province

out of Canada. Predictably,

Dion’s letter was criticized by Péquistes—but widely praised outside the province. “This is the kind of message we have been looking for,” said Reform’s Jaffer. And Chrétien suggested that the exchange of letters had “led a lot of people in Quebec to stop and think” about the potentially negative consequences of sovereignty.

With the Supreme Court now tentatively scheduled to deal with the legal issues surrounding Quebec separation in early December, the stage is set for another fall of feuding between Quebec and the rest of Canada—and between federalists who cannot agree on how to deal with Quebec. The court will be asked to rule on three issues: whether the province can unilaterally de-

clare itself sovereign under Canadian law, whether it has the right to do so under international law—and, if domestic and international law are at odds, which one takes precedence.

The renewed focus on unity is both good and bad for the Chrétien government. On the negative side, the debate is likely to sidetrack attention from several initiatives the government has planned for this autumn. But it will also disguise the fact that Ottawa’s agenda for the coming months appears thin. Part of the Prime Minister’s fall will be spent on a series of international events, including separate meetings of francophone and Commonwealth countries, a gathering of members of APEC—Asia-Pacific Economic Co-operation—in Vancouver in late November, and the planned signing in December of a landmark declaration, banning the use of land mines, that was initiated by Canada.

As for the rest, the speech from the throne, to be delivered by Gov. Gen. Roméo LeBlanc on Sept. 23, will lay out the priorities for the Liberals’ second mandate—and it will be devoted more to maintaining the status quo than to establishing new programs. Among the likely highlights, the Liberals will promise to:

• devote half of future budget surpluses to increased spending on social programs, and half to debt-reduction payments;

• maintain present levels of federal transfers to the provinces for health care;

• spend $850 million on child poverty, and eventually double that amount.

Despite that relatively modest list, the Liberals insist they are turning an important corner. For the first time since coming to power, said Martin, “we are talking about a post-deficit world where we will be able to focus less on cutting and more on what to do with new revenues.” That improving fiscal picture should be good news for all Canadians. But, as the bickering over unity once again demonstrates, not even the prospect of more money can buy a nation happiness. □