COLUMN

Let podiatrists do a Constitution

We suggest podiatrists for the job because they are great listeners; but absolutely no lawyers please

STEWART MacLEOD August 20 1990
COLUMN

Let podiatrists do a Constitution

We suggest podiatrists for the job because they are great listeners; but absolutely no lawyers please

STEWART MacLEOD August 20 1990

Let podiatrists do a Constitution

COLUMN

STEWART MacLEOD

Today, as we wring our collective hands over the demise of the Meech Lake accord, we mustn’t miss this— perhaps last—opportunity to get out of a century-old constitutional morass. And, before Prime Minister Mulroney launches us into a brain-boggling “big national debate” on the future of Canada, a plea for sanity.

That is, for once can’t we impose a complete ban on constitutional lawyers—those people who, incredibly, have not only managed to convince us a Constitution is necessary, but invariably become personally obsessed in the process? They, in case you hadn’t noticed, have been our downfall from the beginning. To let these zealots loose on a project of this import has been sheer insanity. Much better that constitutional reform be undertaken by a small committee of, say, podiatrists.

Just look at the cast which engineered the 1982 Constitution, with its troublesome Charter of Rights and Freedoms. Lawyers all— Pierre Trudeau, Jean Chrétien, Roy McMurtry, Roy Romanow and others. They struck a midnight deal in an Ottawa kitchen, which alienated a third of the country. Great work.

More recently, most constitutional lawyers in the country spent three bewildering years arguing whether the “distinct society” clause would, or would not, extend Quebec’s legislative authority in some obscure way—while the real people were quietly leading the province towards sovereignty.

The trouble with constitutionally obsessed lawyers is that they have this funny idea a constitution governs a country and its people. In truth, of course—and podiatrists, among others, know this—it’s the other way around. Constitutions, for countries unfortunate enough to have them, are reshaped with every spring cleaning, usually by the courts, to accommodate the changing requirements of the people, or the whims of dictators.

Take the American Constitution, with more

Allan Fotheringham is on vacation.

We suggest podiatrists for the job because they are great listeners; but absolutely no lawyers please

guaranteed individual freedoms than any other—about 37—and that doesn’t include the “life, liberty and the pursuit of happiness” section of the Declaration of Independence, which has been frequently cited in the courts as a “higher law” than the mighty U.S. Constitution itself. That constitution, if you must be reminded, is the same one under which slavery flourished for a century. When it comes to pursuing happiness, slavery isn’t always the first thing that springs to mind.

Instead of copying the American pursuits, we opted for the more modest Canadian “peace, order and good government”—knowing full well we’d never get all three.

Our obsession with the Constitution began because of the humiliation of having to ask the Brits for changes to the British North America Act, which rested in the bowels of Westminster. The BNA Act was the basis of our present Constitution—the one Pierre Trudeau described as “our coming of age.” Five years later, after another round of midnight Monopoly, we had Prime Minister Mulroney saying the Meech accord would “complete the family circle.”

Some age, some circle. Simply a new collection of clauses to fight over. Once again, Colo-

nel Sanders was unleashed on the chickens. No question about it, constitutional lawyers, with their pretzelized pronouncements on possible ramifications, blew it. Amazingly, they again convinced us that every word in the Constitution was actually important.

Some said federal-provincial programs would be threatened—while we all know that if there’s a national will for such programs, they’ll be implemented, the Constitution be damned. And vice versa.

Come to think of it, our unemployment insurance program was unconstitutional when implemented in 1940. No problem, just a simple amendment did the trick.

Look at all the nonsensical fretting about giving Quebec a veto on Senate reform—as if there was ever the slightest chance of Senate reform without Quebec’s consent. Podiatrists would know this.

The Charter of Rights and Freedoms might be a beaut, particularly when it comes to clogging the courts. But, when all freedoms have to be “demonstrably justified in a free and democratic society,” we’re basically back where we always were—to common sense. Canada wasn’t exactly a tyranny before 1982.

Quebecers, incidently, now live under the freedoms of two charters. That’s the province where you can’t post outdoor signs in English. Escape hatches abound.

Are you aware that the Supreme Court of Canada upheld federal legislation which makes it illegal to communicate, or appear to communicate, for the purposes of prostitution—a clear violation of the freedom-of-expression section of the charter? Although the two female judges, to their credit, disagreed, the court’s 4-to-2 decision was that the “nuisance-related aspects of solicitation” outweighed the charter violation.

Once again, we meet society’s demands. A waste of court time. And, for the rest of us, a reminder that, if we approach an unfamiliar lady for directions, make sure she’s not a hooker. You can’t be too careful with so many freedoms on the loose. Little wonder British parliamentarians giggled when John Diefenbaker brought in his legacy-leaving Bill of Rights, which, among other things, entitled us to the “enjoyment of property”—another awesome waste of words, particularly for subsidized apartment dwellers.

You see, Brits aren’t impressed with constitutions, having never had one. However, it’s great to know Albania has one of the finest. Russia is famous for its constitutional freedoms—obviously a great comfort to Josef Stalin’s victims. Just about every two-bit principality in the world is rich in patriotic parchment.

Wonder how worse off we’d be with a onepage, single-spaced declaration that Canada is a democracy, governed by the rule of law and common sense? And not one clause to trigger another federal-provincial confrontation. While we suggest podiatrists for the job, because they’re great listeners, it could be anyone, zoologists, denture therapists, Unitarians. Perhaps a contest, open to all groups—except, of course, absolutely no constitutional lawyers.

Stewart MacLeod is Ottawa columnist for Thomson News Service.