It was the best of times. It was the worst of climes. For better and for worse, the deed was done at 4:40 p.m. (EST), Dec. 2. In the Commons the blend of official tongues in a rousing rendering of O Canada heralded the de facto declaration of the nation’s independence. The gusto of the anthem, the French voice of Quebec Liberals swelling perceptibly above an English majority, was more than a finale to 14 months of impassioned debate, mounting anger and unseemly dealing.
At last, after 54 years of toil under six prime ministers, dozens of premiers and thousands of bureaucrats, Canada had produced its own basic, written law,
114 years after nationhood. In a way never before seen in Canadian constitution-writing, the exercise grew to embrace real people with passionate causes. Unlike the British North America Act of 1867, this was no secret compact. The battle was fought on the TV sets of the nation. Subject to expected votes of approval in the Senate this week and the British Parliament early next year, we will have our Canada Act, better late than never.
Typically, it starts with that ringing Canadian qualifier, “Whereas.” Its great and glorious passage complete,
Speaker Jeanne Sauvé declared, “If it would not be too much of an anticlimax, we should proceed to other business.”
The reason: the Conservatives, riddled with dissenters, had prevailed on Madam Speaker to cancel a planned bipartisan bash in her quarters. NDPer Ian Waddell protested, “Surely Canadians should learn to enjoy themselves.”
But it was not to be.
“We should be glowing with what we achieved,” proclaimed Toronto nationalist artist Charles Pachter. “Our population is so small — there is nobody here—but look what we’ve accomplished!” Indeed. For the first time, Canadians have a constitution that is legal in both official languages. It includes a charter of fundamental rights and a formula for future made-inCanada amendments. Judges willing, the provisions could make men—and women—more free from the idle whims of governments, justice and commerce. Schoolchildren will have a text from which to learn the shared values of a remarkable land: officially bilingual, multicultural in character, respectful of native rights and the equality of the sexes, committed to schooling for French and English minorities. Above all, Canadians can take pride now, as Quebec author Jean-Paul Desbiens once remarked, that “dignity isn’t a constitution locked up in an English safe.”
Do nothing by halves Which can be done by quarters.
Frank Scott, the poet and leading constitutional
scholar, was home in Montreal, in deference to his 82 years, when the Commons voted 246 to 24 to approve the resolution that beseeches British “Lords Spiritual and Temporal and Commons” to sever the colonial cord. Canadians of all ages will have to read between the lines of the document to get Scott’s point, penned in 1957, but so fitting for this final draft. The message is often more sweet than bitter.
Officially, Quebec is out of the deal. Individuals will have the same rights as all Canadians to challenge perceived injustice in the courts, from forced early retirement laws to discrimination in the workplace. Quebeckers may even use the charter to challenge French as the only official language.
But the government of Quebec, as the important voice of the largest francophone population outside of France, and the government of Canada failed miserably to forge an accommodation between the two founding peoples.
The quest has bedevilled leaders since Confederation was born of deadlock in 1867. But now
the historic failure is fuelled by personal animus. Pierre Trudeau and René Lévesque, two proud native sons of Quebec, are poised for one last great confrontation—with all the rest as spectators.
The personal nastiness between the two old foes is only a prelude to months of bitter duels to come, leading we know not where. Liberal MP Louis Duelos, who defied Trudeau to vote against the patriation package, voiced “a secret wish” of many Quebeckers: “They dream of the day when their two great political idols make peace, shake hands and start solving the problems of concern.” Dalhousie’s social philosopher, George Grant, spoke for many in English Canada when he remarked: “I’m glad it’s through. I’m very glad Trudeau’s unilateral action was beaten. And I’m very worried about Quebec.”
Trudeau roundly rejected the hand-wringing about Quebec. “We have 74 members of Parliament elected from Que-
bec who support this.* I am a Quebecker as much as any other.” As for the rest of the package, Trudeau conceded, “The charter is not perfect.”
For the first time in public, the prime minister acknowledged that the Supreme Court decision last September “was a turning point” because the decision “said that it wouldn’t be constitutional” to proceed without substantial agreement from the provinces. Despite that decision, which plunged reluctant parties back to the bargaining table in November, Trudeau crowed: “I still think we made one heck of a good deal. It’s unbelievably good, in the sense that
* In fact, 68 voted yea. Two, Warren Altmand
and Louis Duelos, voted nay. Three were absent and Speaker Sauvé could not vote.
it could have been incredibly worse.”
What Trudeau had in mind was the constitutional conference in 1979 where, in return for his charter, he was prepared “to give up the shop” to the provinces. In contrast, Ottawa now preserves draconian powers to assert its will in a crisis.
Above all, for Trudeau, there is the enshrinement of the Holy Grail that brought him to Ottawa: the legal guarantee that both English and French can be used in Parliament, federal courts and in the offices of the national government from coast to coast. New Brunswick, by grace of Premier Richard Hatfield’s commitment to francophone rights and his political smarts, also will become officially bilingual. One historic breakthrough, almost lost in the piece, is English Canada’s belated recognition in law that, where numbers warrant, francophones will have the right to send their children to French schools.
And, of course, there is a charter that entrenches funda-
mental freedoms, legal rights and equality rights. Those freedoms embrace religion, the press and peaceful assembly; the right, U.S.-style for the first time, to call a lawyer “without delay” and not to be detained arbitrarily; gand freedom of equal treatment regardons of race, origin, color, religion, sex, Sage or disability.
I The guarantees could, however, be ^imperilled. Legislatures have the right I to override the three categories of rights. Ottawa is betting that they will not dare to.
Much as Trudeau portrays the new constitution as a victory, its laborious creation was testimony to powerful forces at either end of the land that he resents—confident premiers and their
burgeoning regions. Trudeau was forced to retreat on the central amending formula, the device that will determine any new changes to the patriated constitution. Now alterations to the Senate or the Supreme Court, for example, will have to be approved by seven provinces, representing 50 per cent of the population. Gone from previous rounds is a veto for Ontario and Quebec. Any three dissenting provinces can opt out of a deal in educational and cultural matters signed by the other seven and receive financial compensation—a bonus, in effect, for going their own way. Trudeau once denounced this formula for a checkerboard Canada as one that “would guarantee inequality between the provinces.” Now he has to live with that.
The big winner—le gagnant du gros, as perceptive Montreal La Presse columnist Lysiane Gagnon has it—was Alberta Premier Peter Lougheed. He led the fight that forced Trudeau to drop not only his amending formula but even a proposed referendum on the formula. Lougheed insisted on qualifying “existing” native rights, fearful of the implication for control of oil and gas. He was the architect of the new amending formula, which denies veto powers to central Canada.
Newfoundland’s Premier Brian Peckford, who, to Trudeau’s horror, once portrayed Ottawa as “an agency of the provinces,” won a key escape clause—the Hibernia hitch—on so-called mobility rights.
There were key concessions, too, for Trudeau’s two allies in the affair from the outset. For Hatfield, there was the principle of equalization. For Bill Davis of Ontario—and the Orange Lodge—there is an important omission: bilingualism will not be imposed on the legislature and courts.
There is also the matter of education rights—and their lack—for minorities. In English Canada the charter will allow parents whose mother tongue is French to send their children to French schools. The same mother-tongue provision will not apply in Quebec for the English until the legislature so orders—in other words until provincial Liberals defeat the Parti Québécois.
“I am sorry,” says Trudeau, “that we haven’t got full freedom of choice in Quebec.” But he argues that the current rulebook “reduces even more drastically the rights of the francos in Quebec.” They cannot opt to educate their children in English, while even under Quebec’s Bill 101 most English parents can send their children to English schools. As for francophones outside Quebec, dissenter Duelos asserts that the charter is a hollow guarantee. Unlike Quebec’s anglos, who have a long tradition of controlling their own schools, he notes that francophones outside Quebec often have to send their children to French immersion classes in English schools. The schoolyard, says Duelos, then becomes
“a marvellous assimilation tool.”
The precarious state of education rights illustrates the benefits of an ungutted charter, and what happened to women and natives in November proves the case absolutely. The sorry spectacle of protections for women and natives being ditched in the eleventh-hour zeal for a deal at any cost was chilling. There sat 11 men, eight of them lawyers, looking the other way as bureaucrats in a back room stripped the charter after the public session was over. Only the revelation of the duplicity, and a striking storm of protest from the grassroots, forced the politicians to restore the rights.
On the one hand, the reversal was a triumph for Canada’s thriving women’s network, a hopeful sign that, finally, its members are about to break the grey male hegemony over Canadian public life. For the original inhabitants of the land, the gains were less than certain. The “existing” aboriginal and treaty rights were affirmed. But the actual definition of those rights awaits another conference that must take place a year after the constitution is proclaimed. Given the past record of broken deals, it is not clear that the original peoples can rest on their laurels—especially if oil and gas are entombed below.
In theory, the charter could give rise to a whole generation of activists, beating a path to courthouses to overturn existing, discriminatory laws. Among those that could be challenged are the War Measures Act (for improper detention and loss of freedom of speech) and the Official Secrets Act (for denying open trial by jury). The all-embracing writs of assistance, issued to police with no limits or questions asked, could run counter to charter protections against unreasonable search and seizure. Illegally obtained evidence may not now be valid in the courts. Equality provisions may prevent companies from forcing employees out the door at 65, or car insurance firms from charging male drivers under 25 higher rates than females.
For a country nurtured on quiet respect for all forms of authority, there could be heady times ahead in the land of the sleeping beaver. When the original Fathers of Confederation—again, no mothers—landed in Charlottetown in 1864, they gave no thought to mass involvement of citizens in constitution making. In fact the unusual level of enthusiasm at dockside that September day had nothing to do with nationbuilding and everything to do with the arrival of the first circus on Prince Edward Island in 21 years. It only took 114 years to get the constitutional Barnum and Bailey act back on the tracks—whereas, and wherefore, and non obstante, if it please me, lord. In all, it has been a great Canadian triumph over adversity, geography and ego—at times, even over common sense. _
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