COVER

Bora Laskin’s fateful legacy

John Hay October 12 1981
COVER

Bora Laskin’s fateful legacy

John Hay October 12 1981

Bora Laskin’s fateful legacy

COVER

John Hay

In the wake of the Supreme Court of Canada’s landmark judgment last week, a visiting group of British MPs stopped René Lévesque and asked him whether Pierre Trudeau would relax his constitutional position. “Not him,” said the premier, “I’ve known him for many years. He’s têtu.”

Hardheaded, an aide translated.

“Hardheaded?” mused Lévesque. “He’s a lot worse than that.” Political antagonists for decades, Trudeau and Lévesque understand each other with the hostile intimacy of a feuding family. Once again, Lévesque seemed to read the prime minister right: though deflected perhaps a degree or two from his constitutional course, Trudeau has not been diverted from his goal. And the Supreme Court, far from peaceably settling the nation’s future, has rendered a judgment that rearms all sides in the conflict.

Through a television hookup that somehow transmitted the incongruous grey light of the Korean dawn, Trudeau expressed his intentions to the nation: “I see no alternative but to press on. But I assure you that we will do so prudently.” In the days that followed, federal strategists began plotting the transformation of Trudeau’s decision into action. With trans-Pacific phone calls that started with a chat

between Trudeau and Justice Minister Jean Chré_

tien minutes after the judgment, the outlines of

the federal plans started to emerge.

On the one hand, Chrétien would make it clear that the government is ready and still eager to bring its resolution back to the Commons and Senate for a final two-day debate in each chamber. Then Ottawa will send it on to Westminster where the British Parliament will be expected to do its duty. On the other hand, the feds would profess to be open to any offer the premiers might make for a return to the constitutional bargaining table. At week’s end, Chrétien was pushing the eight provinces opposing the Trudeau package (all but Ontario and New Brunswick) to hurry along with their next move: “It’s a question of days and not of months,” he declared. Meanwhile, in Melbourne, Trudeau said he was willing to stop in Vancouver this week on his way back to Ottawa, offering to meet Premier Bill Bennett in his capacity as this year’s chairman of the premiers’ conference. But Bennett pleaded a prior engagement with Alberta Premier Peter Lougheed and Trudeau ended his week by declaring that he would seek final approval for his dream as soon as Parliament resumes Oct. 14: “There is no need to wait a second longer.” He qualified the statement slightly a few hours later by saying he would delay the debate “a few days”—but only if the provinces could come up with concrete proposals to improve the package.

For his part, Bennett set himself a tall order in

trying to draw a unified proposal out of eight pro-

vincial governments with divergent constitutional policies. Manitoba, for example, is still against a charter of rights; Nova Scotia is for it. Bennett didn’t make it any easier for himself by springing his cross-country tour on a group of provincial ministers just as they were meeting in Ottawa ostensibly to agree on joint strategy after the court judgment. With Bennett still darting about the country in his spiffy blue and white B.C. government jet, the ministers were by no means sure what—if anything—he had in mind.

The obstacles were obvious to them—as well as to the federal officials watching Bennett’s efforts to build a new provincial coalition. In more than a year of concentrated negotiations, the eight anti-Trudeau premiers have been able to agree on only one constitutional proposal they could submit to the prime minister—a plan to patriate the British North America Act with an amending formula that would permit provinces to opt out of future changes, and without a charter of rights. Chrétien quickly rejected that plan when the premiers advanced it last April; he called it “a kind of sovereignty-association by instalment.” He is no more likely to accept the same formula if the premiers offer it again. Equally adamant was Lévesque, who ruled out fresh negotiations unless Trudeau “clearly renounces his unilateral action and modifies key elements in the charter of rights.” It is a condition that Ottawa has no intention of accepting.

Nonetheless, it was notable that Ottawa and the provinces were still on speaking terms. Saskatchewan AttorneyGeneral Roy Romanow, lead negotiator for the provinces during the past 18 months of constitutional bargaining, had drinks at Chrétien’s house on the evening of the judgment—Chrétien claiming the bottle of scotch he had staked on the outcome of the court case. Romanow believes the judges may have planted the seed of a political settlement. By allowing that provincial consent to constitutional amendments might be satisfied by something short of unanimity, the court may have cleared the way for Ottawa and just some of the provinces to agree on a new constitution. Romanow met Chrétien a second time then took up the issue with his fellow intergovernmental affairs ministers. After a “cordial” meeting, they agreed to reconvene in two or three weeks.

Even before Bennett could declare that enough provincial consensus had been established for a meeting with Trudeau, federal officials were calculating that a first ministers’ meeting might serve their own interests well. At the low cost of delaying the final parliamentary debate a couple of weeks, such a meeting would potentially pull most of Ed Broadbent’s New Democrats back onside. Broadbent reconciled his divided caucus last week by making one more first ministers’ conference a precondition of NDP support in the Commons. There was also the enticing chance—albeit slight—that one or more of the eight could be nudged by some small compromise into the federal camp. Defecting premiers apart, the renewed adherence of the NDP in the Commons would give the Grits some Western support that the resolution

otherwise lacks—and a gain of badly needed legitimacy.

Better regional backing would certainly mollify Westminster, where back-bench mutterings are once again being heard against Ottawa’s designs. Jonathan Aitken—one of four British Tories in Canada on a junket paid by the Lévesque government—put the odds at 6 to 4 against federal success at Westminster in the bill’s present form. But Aitken is one of a relatively small group of back-bench activists on this issue; even provincial agents-general, who have been lobbying in London for months, have never claimed that more than a minority of MPs would vote against the Canada Act.

The provinces argue now that the British will be impressed by the Supreme Court finding that it is “unconstitutional in the conventional sense” to press the resolution on Britain without provincial consent. Because the British constitution itself rests entirely on convention and statute—not an overriding constitutional document—they argue that British politicians will be loath to violate a convention

authenticated by the Canadian court. Federal officials counter that the British will not balk at overturning convention, since that is precisely the way their own constitution develops. Before approaching Britain’s Margaret Thatcher at the Commonwealth meeting in Melbourne, Trudeau took the simplest tack: “I would expect her to pass it,” he declared.

Until Ottawa and the provinces decide

whether to be friends, the lobbying by both <sides in London has oabated—but not to geveryone’s liking.

o“That’s a pity,” sighed |Sir Anthony Kershaw, £the much-lobbied chair§man of the Commons Iforeign affairs committee. “I won’t be getting any more free lunches.” Meanwhile, Chrétien did nothing to curry British favor, charging, “If they want to block our project and get involved like some kind of referee, as they are doing in Northern Ireland, that is their affair.” That sort of provocation will not amuse Humphrey Atkins, the Lord Privy Seal and minister in charge of the Canadian bill. His last job was minister for Northern Ireland, where he had to face down the hunger strikers.

The provincial governments now assume that they will have to carry the fight to London. And one angle of attack being studied by lawyers for the provinces is a legal manoeuvre suggested by J.V. Clyne, a retired justice of the Supreme Court of British Columbia. An outspoken opponent of Trudeau’s charter, Clyne thinks it would be possible to seek an interpretation of the 1931 Statute of Westminster from the court of chancery in London. Such a motion would ask, in effect, for an opinion on whether Westminster may make major changes to the constitution of another sovereign state. It is a move that throws no fear into the hearts of federal lawyers but has piqued the curiosity of provincial attorneys-general. The plainest weakness in the Clyne scheme is that while the 1931 statute left Canada sovereign for all practical purposes, it expressly made one exception: amendment of the BN A Act was left to the British Parliament. And

that raises exactly the issue the Supreme Court of Canada took nearly five months to decide: how should Canada ask Britain for the far-reaching changes proposed in the Canada

Act?

The answers, after the long summer’s wait, were almost inaudible either in the walnut-lined chamber of the court itself or by the live radio-TV transmission. Nor, even to lawyers who have been on the constitution case for years, were they immediately comprehensible.

The unanimous answer to Question One was simple enough: yes, the resolution would affect provincial powers. The feds conceded that in the hearings last spring. Question Two was harder: is there a convention that provinces must consent to amendments requested by Parliament which affect provincial powers? A majority of seven justices ruled that there is such a convention that is part of the constitution, but that it is not law and not enforceable by the courts. Three of the brethren—Chief Justice Bora Laskin, Willard Estey and William McIntyre—dissented, arguing that there

is no such convention. The feds had lost on Question Two. Then came the key Question Three: “Is the agreement of the provinces of Canada constitutionally required” for amendments affecting their powers? As Laskin intoned the answer, a sickened silence fell over the group gathered in Chrétien’s justice department office a few metres from the court. For the Trudeau case to survive, the answer must be no. But even with the bad TV sound, Laskin’s voice was clear enough: “as a matter of constitutional convention, yes.” Eternal seconds passed before the Chrétien group heard the second half of the answer: “as a matter of law, no.” The reaction by then was not so much joy as a relieved sweat.

Running 168 pages in the English version, the judgment in bulk alone is a feast for politicians, lawyers and scholars. Its complexities will nourish learned arguments for years to come. But the legal grapevine quickly ripened with gossip about who actually wrote the historic judgments since, as sometimes happens, the justices did not sign their own contributions. Laskin’s scholarly but elliptical style is discernible

in parts of the 7 to 2 majority reasons on Question Three and paragraphs of the three-member dissent on Question Two. Justice Ronald Martland, due to retire when he reaches 75 next February, was thought to have led the writing for the majority on Question Two, finding against Trudeau on the convention issue. Martland and Justice Roland Ritchie, the Diefenbaker appointees who flank Laskin on the bench and gaze down like two elderly but still dangerous snapping turtles, were the dissenters on Question Three. By passing the Trudeau resolution, their dissent declares, the Commons and Senate “are purporting to exercise a power which they do not possess.” The government’s course “would offend against the basic principle of the division of powers.”

What turned the judgment into a political weapon in the hands of both Ottawa and the provinces was the incendiary combination of the two majority decisions: affirming the convention that provinces must be consulted before an amendment affecting their powers is sent to London, but denying that there is any legal way to stop Ottawa’s action. “The agreement of the provinces of Canada ... is constitutionally required,” the court says on Question Two. But on Question Three: “The law knows nothing of any requirement of provincial consent, either to a resolution of the federal Houses or as a condition of the exercise of the United Kingdom legislative power.”

Nor were any arguments settled on the narrower issue of conventions. While the majority asserted that there is a convention, it admitted not being able to say how many provinces must consent under that convention. To the Laskin-led dissenters, the very fact that federal and provincial governments hâve never been able to agree on what the convention is constitutes persuasive evidence that there is no such thing. The long-running controversy “only adds additional weight to the contention that no convention of provincial consent has achieved constitutional recognition to this day,” says the dissenting opinion. To the layman who might ask whether a simple review of the history of amendments would reveal whether provinces consented, the answer is no. Examining 22 cases of constitutional amendments since Confederation, six judges thought they found a convention of consent and three did not.

All of which left the politicians in a turmoil. Trudeau and Chrétien claimed vindication; their resolution was on sound legal footing and it was now time to change a convention that had, for half a century, blocked the patriation of the constitution. The provinces, although failing to convince the court that the convention of consent had “crystallized” into law, claimed a moral victory in the court’s ruling that the resolution is unconstitutional by way of breaching convention. It was, some said (though fewer were sure), enough to force Trudeau back to the bargaining table. In this they were sup-

ported enthusiastically by Tory leader Joe Clark, whose party’s filibuster had forced the government to put off a final Commons vote last April, pending the court’s decision. If Trudeau does press on, “we will oppose him absolutely,” said Clark, adding that Liberal reliance on the court’s legality ruling amounted to “legal trickery.” Having already agreed to the Commons order limiting the next phase of debate to two days and excluding all amendments, the Tories are looking at tactics that might still stall a final vote. The Clark people believe they’re riding a winning issue—and for once can appeal to Quebec. Says Clark’s policy adviser Richard Clippingdale: “We’re on the right side instinctively of a Quebec issue for the first time since Riel. By the right side, I don’t mean separatism but the sense of not being pushed around by Ottawa.” The Conservatives are also aware, however, that the charter of rights remains popular across the country; they must take care to oppose the process, not the content, of Trudeau’s constitution-making.

As B.C.’s Bennett unintentionally proved, politicians will have no easier time than judges dealing with these issues. Trying to bolster the natural provincial argument that conventions are often far more compelling rules than laws, the premier maladroitly picked three bad examples: he cited the rule that legislators must face election at least every five years, which, in fact, is entrenched in the BN A Act and is not a convention; the rule that the winners of an election form the government, which was breached famously by the Mackenzie King Liberals after they lost the 1925 election; and the rule that governments resign when beaten on a money bill in the Commons, which passes in oand out of vogue and was ^violated by the Liberals *in 1968. Bennett’s examples tend to prove that conventions are commonly broken and that violators can be punished at the polls, not in court.

The revenge of the ballot box is one resort voters may bear in mind if they find that their federal tax dollars are being spent against their provincial tax dollars to finance competing advertising campaigns. The feds have already launched a million-dollar run of ads and commercials in Quebec to counter a Parti Québécois pitch; they say they will do the same in any other province that starts an anti-federal publicity campaign. Ottawa is preparing a second-stage commercial blitz, described as more of an information campaign, for national use after the resolution clears Parliament. One instrument ruled out by Chrétien and most of the premiers is a referendum. “People are fed up with hearing about the constitution,” said Chrétien. “If they don’t approve of our project, all they have to do is defeat us in the next election.”

With files from Ian Anderson, Anne Beirne, Colin Brown, Peter Carlyle-Gordye, Dale Eisler, Malcolm Gray, Randolph Joyce, Gordon Leyye, Robert Lewis and Kennedy Wells.