PART ONE: The Political Maneuvering
Barry W. Bussey
On a cold April day in 1982, her Majesty Queen Elizabeth II gave her Royal Assent to the Constitution Act 1982, entrenching the Canadian Charter of Rights and Freedoms.
This marked the end of a career-long aspiration of Prime Minister Pierre Trudeau. Early in his leadership, Pierre Trudeau held constitutional discussions with the premiers to close the constitutional gaps that frustrated Canadian politicians since Confederation in 1867. One such gap was the ability of the Canadian people to amend their own constitution – a power that remained with the British Parliament. Further, there was no entrenched bill of rights such as the Americans had in place since the eighteenth century. By the 1970s, it seemed time for Canada to “grow up” and be an equal among the nations of the world, looking after its own affairs without reliance on the “Mother Country”.
In 1971, Pierre Trudeau and the provincial premiers entered an agreement known as the Victoria Charter. The Victoria Charter, according to Pierre Trudeau, “would have been good for all Canadians because it would have patriated the constitution with the elements of a charter of rights, provided a workable amending formula, and enshrined official languages in the legislative, judiciary, and executive functions of the government of Canada and several of the provinces.”[1] Its amending formula required approval from a majority of provinces with a right of veto for Ontario and Québec. But it was not to be. Quebec premier Robert Bourassa retracted his agreement because he wanted provinces to have exclusive sovereignty over social programs but with federal funding; Pierre Trudeau refused. Trudeau felt it was a lost opportunity to resolve the constitutional question that ultimately led to the Parti Québécois and the referendum crisis of 1980. “[M]uch of Bourassa’s subsequent career,” Trudeau bemoaned, “has been spent trying to regain what he was once so unwise to refuse.”[2]
The 1976 election of the separatist Parti Québécois convinced Pierre Trudeau that constitutionally entrenched rights were necessary for Canada to remain united. He was prepared to move forward without the provinces. He entered the 1979 election with the constitution as the most important electoral issue; however, the Canadian public was more concerned about the economy and opted for change. With Joe Clark elected as prime minister, Trudeau’s pursuit of a charter of rights seemed to have met an ignominious end. Yet, although he resigned leadership of his party, the twists and turns of politics saw Trudeau back in power a mere three months later.
Although he campaigned on more relevant issues than the constitution, his re-election gave Trudeau the floor to make the constitution the major focus of his final years in office. This was especially relevant because in the spring of 1980, Lévesque held a referendum in Québec on whether to stay in Canada.
Subsequent negotiations over the constitution were rife with interprovincial squabbles and discord between provinces and the federal government. The provinces did not want legislative power reduced by unelected judges. They wanted Parliament to be the supreme law of the land, not the judges at the Supreme Court of Canada. Québec premier, René Lévesque, and seven other premiers, known as “The Gang of Eight,” resisted Pierre Trudeau’s proposal “to go it alone.” They took the issue to the Supreme Court of Canada,[3] which ruled that while Trudeau could act unilaterally, there was a “convention” that there be a “substantial” number of the provinces in agreement to amend the constitution. That created a political problem for Trudeau.
In November 1981, Trudeau hosted the premiers in Ottawa for “one last try”[4] to gain the premiers’ approval. During the final night of the meeting, nine of the ten premiers reached an agreement with Jean Chretien, Trudeau’s go-between. Lévesque was not among them as he stayed in a different hotel in Hull, Québec. Upon learning about it the next morning, he declared that Québec had been betrayed. “Did they expect us to snoop around the corridors of the Chateau Laurier, listening at keyholes, perhaps?”[5] Lévesque later complained.
However, it was Lévesque who earlier that day had abandoned the united front of the premiers when he agreed with Trudeau to a referendum if an agreement could not be met on the amending formula and the charter. It was a sinister move by Trudeau to get Lévesque out of the “Gang of Eight”. It worked. Seen by the other premiers as untrustworthy, Lévesque was not called during the night of negotiations with Chretien.
The agreement included the “Alberta amending formula” that removed the Québec veto; and the concession that the Charter would be subject to a “notwithstanding clause” that allowed rights to be suspended by the legislatures. In other words, the legislatures were to be supreme, not judges. The notwithstanding clause was a struggle for Trudeau. “[It] violated my sense of justice,” he said, explaining, “it seemed wrong that any province could decide to suspend any part of the charter, even if the suspension was temporary and required various formal hurdles to be jumped by the provincial legislature.”[6]
The Constitution Act, 1982, that contained the Canadian Charter of Rights and Freedoms was proclaimed on April 17, 1982 – forty years ago. “It was not perfect,” Pierre Trudeau admitted, but it “largely enshrined the values [he] had been advocating since [he] wrote [his] first article in Cité libre in 1950.”[7] In short, it was his magnus opus.
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In part two of this Forum series on the Charter, we will consider the political debates on the role of judges, which we saw during the negotiations of the Charter, and which are still relevant today.
[1] Pierre Elliott Trudeau, Memoirs (Toronto: McClelland & Stewart, 1993), p. 231.
[2] Trudeau, p. 230.
[3] Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 SCR 753, <https://canlii.ca/t/1mjlc>
[4] Trudeau, p. 316.
[5] Rene Lévesque, Memoirs, (Toronto: McClelland & Stewart, 1986), 331.
[6] Trudeau, p. 322.
[7] Trudeau, p. 328.
