As last week’s constitutional conference crept into evening TV, the principal actors responded almost as if on cue. There, grouped around the table in heated debate over “patriation” of the constitution, were Prime Minister Pierre Trudeau, the cool rationalist, Ontario’s phlegmatic Bill Davis, Saskatchewan’s professorial Allan Blakeney and Quebec’s stormy René Lévesque, representing four political parties, three distinct regions and the two official languages.
Trudeau and Davis noted that Canadians have been feuding over the transfer of the British North America Act from Britain to Canada for 52 years* and said now is the time to do it. But Blakeney and Lévesque argued that Ottawa should first transfer more power to the provinces.
Trudeau replied that he had already promised to transfer some powers.
Blakeney acknowledged that, but added: “It’s the date of delivery that’s the problem.” Squawked an injured Trudeau:
“Hey! You haven’t delivered anything to me!”
And so the debate continued for another few minutes before Trudeau abruptly brought it to a close, much to the relief of the CBC, which was losing thousands of dollars in advertising revenue as normal programming was preempted through the dinner hour in Eastern Canada. Banging his gavel to end the conference, Trudeau declared: “We are each free to interpret the results the way we want.”
For the bewildered or bemused viewers who tuned in late, Trudeau’s summation was not much help. But the
*The subject was first considered at a federal-provincial conference in 1927. There were also attempts to patriate the constitution in 1931, 1935, 1950, 1960, 196k and 1968-71.
meagre results of the two-day conference speak for themselves (see chart on page 16). There was agreement only to transfer jurisdiction over marriage and divorce to the provinces, to recognize the provinces’ right to levy indirect taxes on resources and to leave the monarchy alone. On the other 11 points discussed at the conference, Trudeau and the premiers failed to make a deal, although they came close on a few. Even in the judgment of the participants—
expressed privately in some cases—the conference was a failure.
For Canadians weary of the arcane debate, it was a familiar conclusion to a constitutional conference. Trudeau and the premiers have been talking about
the constitution, off and on, for more than a decade. But in that time they have produced not a single amendment to the words of John A. Macdonald and the other Fathers of Confederation.
But they have spawned a new bureaucracy as both the provinces and the federal government have had to add constitutional experts to their payrolls. Another level of government has, in effect, been created: the federal-provincial conference. Once a rare event, there have been four such conferences in the past year alone, two on the constitution. There is a permanent meeting place, prosaically named the Conference Centre, an old railway station in downtown Ottawa, and a 27man secretariat with a $1.2-million annual budget to coordinate the meetings. The cost of these meetings to the taxpayer is incalculable. Last week’s conference alone attracted 220 federal and provincial officials and 167 reporters, technicians, and cameramen from the CBC.
Is it all worth it, given the invisible output? Well, yes. Although patriation will not change anyone’s life and transfer of jurisdiction over divorces will not save a single marriage, the constitutional debate is important. There are matters of substance being discussed—such as jurisdiction over resources— that could have profound impact on all Canadians. If Alberta gets what it wants in the resource field, most Canadians will pay a lot more for gas. There are also symbolic matters—such as patriation—that could bolster the spirit of a weary country which the PepinRobarts Task Force on Canadian Unity found “in a protracted state of crisis.” Finally, there is the necessity for change if only to demonstrate to incipient separatists in Alberta and British Columbia as well as in Quebec that the
system is flexible and need not be completely discarded.
Despite those imperatives, Trudeau and the premiers have found agreement on constitutional change to be elusive. They did come close in 1971. Indeed, they had a tentative agreement on a package that included patriation, an amending formula, a bill of rights and language rights labelled the Victoria Charter because it was agreed to in the B.C. capital. But when Quebec Premier Robert Bourassa went home he encountered enormous resistance to the charter because it did not include transfer of jurisdiction over social security. Bourassa rejected the charter and the agreement collapsed. Trudeau, thoroughly fed up (he had warned that the constitution was “a can of worms”), put the matter on the back burner for four years. Then, in April, 1975, over dinner with the 10 premiers, he suggested they consider the question of patriation alone. He told the premiers that, with a French-speaking prime minister in Ottawa, patriation was achievable. But, as his successor would likely be English-
speaking, a Quebec suspicious of the motivation for patriation would withhold its support and it would be another decade at least before the constitution could be brought home.
The premiers, seeing that patriation was something Trudeau wanted, decided to use it as a lever to further their parochial aims—more powers here, more grants there. They refused to accede to patriation unless Ottawa first agreed to consider their demands. Reluctantly, Trudeau gave in and the most recent round of fruitless constitutional talks began. They proved no more successful than the 1968-71 round, which produced the aborted Victoria Charter. Indeed, on some issues, there was less agreement than in 1968-71 as new provincial governments, not just in Quebec, took a harder line. Thus, Manitoba— where Premier Sterling Lyon, a rightwing Conservative, has replaced New Democrat Ed Schreyer—backed away from its 1971 support for a bill of rights. There were also new issues not discussed in 1968-71, such as resources.
Worried about the looming failure of last week’s conference and the possibility of a public backlash against all politicians as a result, Ontario’s Bill Davis tried to loosen the logjam by breaking with the other provinces and backing patriation. (B.C. and New Brunswick, it
should be noted, had already made the break, but without the same degree of impact.) “I wish the cameras could have been here,” said a beaming Trudeau
after Davis announced his switch at the end of the first day of the conference, which was conducted behind closed doors. The next day, Davis repeated his pitch. “After 112 years as a nation, surely the time has come [to bring the constitution home],” said he. “It would
be a demonstration to the people of this country that we’re serious [about constitutional reform].” At first, it appeared Davis had succeeded as Alberta’s Peter Lougheed announced his unexpected support for the idea. But then Lévesque declared his unequivocal opposition to patriation unless the provinces are first given more powers, and Blakeney supported him. And that was that.
The conference was not a total failure. There was some progress, although Trudeau and the premiers may appear to the casual observer to be standing still. “If we ever accelerate to a turtle’s pace, it will look like blinding speed,” concedes Rafe Mair, B.C.’s minister responsible for the constitution. But the federal government did alter its views on jurisdiction over resources and cable television to accommodate the aspirations of the provinces. And several provinces, including Saskatchewan, Alberta, and B.C., dropped their opposition to a bill of rights.
There was, however, surprisingly little horse trading behind the scenes at the conference. Some provinces came with no intention of bargaining. Said Lougheed on arrival at the Conference Centre: “Not that our position has changed ... We’re just stating it again.” Such attitudes angered the other prov-
inces, notably Saskatchewan and B.C., that came to the conference to make a deal.“The problem with the conference, said a Saskatchewan official, “was that there was no will to succeed.”
Indeed, there were at least two premiers—Lougheed and Lévesque—who wanted the conference to fail. Lougheed was expected to call an election soon after the conference and to run against federal “intransigence” on the resources issue. He could hardly do that if he had agreed to the federal proposal on resources, which was acceptable to every other province except Quebec.
Lévesque has a referendum campaign to fight—either this fall or in the spring of 1980—and it behooves him to demonstrate that the existing system does not work before asking Quebeckers to vote for “sovereignty-association.” He made sure it would not work with a fingerjabbing display of opposition to virtually every federal proposal. Then, afterward, he gleefully announced to the press that progress at the conference had been “microscopic,” without, of course, accepting any of the blame.
Some premiers were suspicious that Trudeau himself did not want the conference to succeed on the grounds that failure would give him an election issue. Their suspicions were heightened when
Trudeau joined Lougheed in pushing from the start to open the conference to the press, not known as the prime minister’s favorite people. (Most of the other premiers balked and the conference was kept closed for all of the first day.)
Opinion was divided afterward on whether the conference had given Trudeau something to run with in an election. In particular, it was difficult to judge the impact of Davis’ support for patriation. In fact, Davis supported Trudeau on all the 14 points up for discussion and, by the end of the conference’s second day, Trudeau was calling the Ontario premier “Bill.” (In contrast, Trudeau twice referred to Manitoba’s Lyon as “Mr. Weir” in the private session on the conference’s first day. Walter Weir was premier of Manitoba 10 years ago.) By lining up behind Trudeau, Davis has made it difficult for Joe Clark, the federal Conservative leader,
to continue to attack the prime minister as a “rigid centralist” who cannot get along with the premiers. But, by the same token, it will be difficult for Trudeau to continue to suggest Clark would conspire with Davis and other Conservative premiers to surrender federal powers to the provinces. Quoting himself from a speech attacking Clark last fall, Trudeau told the premiers: “We’ve almost given up the shop to you people.” He quickly withdrew the statement and tried to soften its impact by presenting a list of areas under provincial jurisdiction that Ottawa would like to control. But the impression remained that Trudeau has done what he had previously criticized Clark for recommending.
Trudeau may run his election campaign against Lougheed and Lévesque, however, and ignore Clark. He might attack Lougheed as the man who would end the economic union and Lévesque as the man who would kill the political union that is Canada and ask for a mandate to stop them both.
Until the election, constitutional reform in Canada is in limbo. Trudeau is expected to introduce a constitutional reform bill in Parliament before he calls the election. The bill will likely include a charter of rights covering federal jurisdiction and any provinces that want to join and may also guarantee the survival in its present form of the Supreme Court, now subject to change at Parliament’s whim. But Trudeau has
promised to meet the premiers “one more time” before attempting any more sweeping change. That meeting will not come before the election and may not come before Quebec’s referendum, depending on the timing of the latter. Thus, fundamental constitutional change is still some time away. Even after Trudeau, if he is still prime minister, meets the premiers again, change will be in doubt unless there is unanimous agreement, which is most unlikely. Some constitutional experts and the federal Conservatives, among others, argue that no fundamental change is possible without unanimous consent of all 10 provinces and the federal government. The so-called “unanimity rule” has prevented patriation and other major changes to date. “But,” says Trudeau, “I think it is more a political question than a legal one at this stage. Politically, I have said I would not go myself, without unanimity, on matters which were not solely within our jurisdiction without at least meeting the provinces again.”
But beyond one more meeting, Trudeau will not commit himself: “I think at some point the provinces will begin to say, ‘Well, gee, maybe unanimity is not possible. Maybe we should find some formula for action which is a little short of unanimity.’ It is particularly not possible if you are acting with a government whose avowed purpose is to show that federalism does not work. So they are not going to make unanimity very simple and easy on many things.
“At some point maybe this rule of unanimity will break down. One has to be very patient.” ;£?
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