CANADA

The constitution: a rough passage home

John Hay April 5 1982
CANADA

The constitution: a rough passage home

John Hay April 5 1982

The constitution: a rough passage home

CANADA

John Hay

The Canada Act has caused many controversies in its rough passage through two parliaments. But last week’s final indignities in the House of Lords were enough to upset even the wizened political war-horse Lord Hailsham. Hailsham, presiding on the woolsack as Lord Chancellor, appeared to be snoozing peacefully under his wig when the final debate on the Canadian constitution went from boring to worse. First,

Hailsham was forced to bark out the order for a vote on a motion to silence the Seventh Earl of Gosford, who had insisted on reading a long speech on Indian rights—a topic their lordships felt was already exhausted in two days of debate in their own chamber and four earlier days in the Commons. Then came an even greater unpleasantness: a man shouting from the gallery, “I speak as a Canadian,” and throwing a sheaf of papers to the peers below. Michael Wolf, a German-born Canadian actor living in London since 1961, was bundled off to a basement cell before finishing his plea for the Indians.

Amid the hubbub,

Hailsham—wig askew— angrily closed off debate with a voice vote. After royal assent, Canada will now have its own constitution, a new charter of rights and the means to amend both. A more decorous conclusion will be reached when the Queen visits Ottawa April 15 to 18 with the royal proclamation to bring the nation’s new fundamental law into force.

For all the well-meant and wellformed speeches on the bill at Westminster, the measure has also been a crank’s delight from the start. Wolf (latest role: a Nazi officer in the Michael Caine movie Victory) says he decided to make his speech to the Lords after bumping into Indian lobbyists in London some months ago. As for the

Lords themselves, most acknowledged the bill as an anachronism; Canada was following tiny Belize as the newest fully independent ex-colony. In this air of unreality and irrelevance, peers found the courtesy to let each other stray far from the facts.

The greatest threat to passage of the constitution in Britain was, in fact, lifted when all the provinces but Quebec reached agreement with Prime Minis-

ter Pierre Trudeau last Nov. 5. What remained, however, was a clamorous, sometimes divided, but surprisingly effective lobby against the measure by several Indian groups. Their main argument: that the new constitution will disconnect the British Crown from any obligation to fulfil its aboriginal rights, which still have not been conceded by the federal government. The House of Lords appeals committee has already ruled in one case that “it simply is not arguable” that such rights are the reI

sponsibility of the British government; they have long since been in Canadian government hands. Two other cases, brought by the Saskatchewan and British Columbia Indians, are still in the British courts.

Even with legal prospects bleak and the Canada Act passed, the Indian groups still considered their efforts as a sort of success. Almost every speaker in both houses of Parliament expressed concern for their plight, however vague they were about the details. Fretted Lady Gaitskell, for one: “The Indians are still a colonial people.” Victor O’Connell, principal London spokesman for the Saskatchewan Indians, says the campaign at Westminster was intended to push the Indian issue to such prominence that Canadian politicians will be forced to come to terms with the Indians at home. “The whole purpose was a political settlement in Canada,” he declared. Under the terms of the new constitution, a federal-provincial conference is to be held to discuss native rights—with native leaders participating— within a year. Said patrician Foreign Secretary Lord Carrington: “It is to the government of Can_ada that the Indians I must look for solutions ^to their problems.” z As British ministers I piloted the bill through zthe debates and fended off amendments, they rigorously refused to explain the bill’s contents or defend its merits. “This is not a matter for the British government,” insisted Lord Trefgarne, minister of state at the foreign office. “The British government had no part in the framing of it and therefore has no responsibility for what is included or omitted.” The wandering debate on Canadian affairs, undirected by any thought of amendment or even of defeat, left Lord Polwarth, at least, “acutely embarrassed.” Said Polwarth: “Surely Canada is a nation that is fit to order its affairs and arrange its own constitution.” Lord Hankey agreed: “For goodness sake, do not let us go busybodying about.” Lord Stewart of Fulham, Labour leader in the Lords and a former foreign secretary, was having none of that. Trudeau had said the British would hold their noses and pass his constitution, but “he did not suggest that we should do it holding our tongues.”

Notwithstanding several tributes to Trudeau’s political skill in winning an accord with the provinces, there is still a whiff of anti-Trudeau feeling among some Westminster politicians. Trudeau’s suggestion that the British politicians hold their noses and do as Canada asked had “unfortunate results,” says Canadian High Commissioner Jean Wadds. “It hurt people’s feelings.” Alberta’s agent general in London, Jim McKibben, says one Tory MP told him he was almost sorry the provinces had settled with Trudeau last fall—removing an excuse for British MPs to “knock him off” in their own constitution debate.

Canadian officials now concede that the Supreme Court’s judgment last September—that it would be legal but not fully constitutional for Ottawa to act without some provincial consent—made passage in Britain difficult, if not impossible, without provincial support. Says Wadds: “No one can say whether it would or would not have gone through.” Despite such signals from his London diplomats last fall, Trudeau insisted after the judgment that he was still ready to take his constitution to London. That, says High Commission constitution strategist Reeves Haggan, was Trudeau’s “strategic use of intransigence.” By pressing on toward London, Trudeau drew the premiers to the compromise he badly needed in November.

Indeed, Wadds herself may have fought her last London battle. Former external affairs minister Don Jamieson, who retired from politics after Brian Peckford defeated Jamieson’s Liberals in 1979, has formed an orderly queue of one with plans to succeed her. Interviewed by The Globe and Mail’s Michael Harris in Swift Current, Nfld., 60-year-old “Mr. J.” declared: “Once the constitutional procedure is complete, it will be time for new faces in England. I would like one more kick at the can before I’m through.” Elsewhere, the Globe editorialized: “That sounds very much like a message to the incumbent, Jean Wadds, a Joe Clark appointment, that she shouldn’t bother reserving for Royal Ascot this year. Should Mrs. Wadds accompany the Queen on her trip to Ottawa next month with the constitution, she would do well to make sure her return ticket to London is paid in advance. And she’d better get back there fast if she doesn’t want to find her steamer trunk out on the street.”

It was hardly a comforting message

for Wadds, who labored hard for Trudeau’s constitution. In that, she was fully supported by Justice Minister Jean Chrétien, who seems to have usefully greased a few skids on his various visits to London. He and Denis Healey, the shadow foreign secretary and former chancellor of the exchequer, share a friendship born in their days as finance ministers. Healey’s help was invaluable in drawing the fractious opposition Labour Party behind the Canadian project. (Though Chrétien had attended all previous Commons and Lords sessions over the Canada Act, he was noticeably absent last week—vacationing in Mexico.)

However important it is to Canada, the bill was being handled just like any other legislation in the smooth and practised rituals of Westminster. The night before final passage by the Lords, a red box was sent from the Lord Chancellor’s office to Buckingham Palace containing an impressive-looking large folder known as a commission—actually a message from the Queen to Parliament signifying her assent to certain bills. The Canada Act is the third of four new bills listed inside. The others: the Agricultural Training Board Act, the Industrial Training Act and the Travel Concessions (London) Act. Returning the commission with her signature at the top, the Queen thus instructs the Lord Chancellor and the Commons Speaker to announce the assent in Par: : liament. The great moment for the Canada Act was set for Monday, March 29— 115 years to the day since royal assent was given to the British North America Act. Like the BN A Act itself, the two I original vellum copies of the Canada Act remain in London —one law that the British can henceforth and forever ignore. Ç?