LORRAINE EISENSTAT WEINRIB
Lorraine E. Weinrib, a law professor at the University of Toronto, has appeared for Ontario in a number of Charter cases, including the major case on the notwithstanding clause in the Supreme Court. She has had a number of conversations with Pierre Trudeau on the political developments that led to the adoption of the Charter in its final form as well as its interpretation in light of those developments. She is currently writing a book on the institutional and conceptual coherence of the Charter and its role as a model for rights-protection in other countries.
I have always wished to ensure myself that the changes would be for the best and not for the worst … [C]onstitutions are made for men and not men for constitutions. However, one tends to forget that constitutions must also be made by men and not by force of brutal circumstance or blind disorder. In this arena, more than any other, one must know where a policy leads.
The state, whether provincial, federal, or perhaps later supranational, must seek the general welfare of all its citizens regardless of sex, colour, race, religious beliefs, or ethnic origin.
–Trudeau, Federalism and the French Canadians, 1968
I would like to thank Jonathan Ptak for valuable research assistance.
THE ADOPTION of the Canadian Charter of Rights and Freedoms is Pierre Elliott Trudeau’s greatest political achievement and his most important political legacy. Overcoming obstacles that had baffled his predecessors, Trudeau secured a constitutional change that offered the tantalizing possibility of a new type of national self-understanding. Rather than an evocation of shared blood and history, which could only invite discord in a land of aboriginal peoples, colonial conquest, and increasingly diverse immigration, the Charter bound a pluralistic and far-flung population into a nation of free and equal rights-bearing citizens.
Given Trudeau’s crystallized ideas before he entered national politics in 1965, his constitutional achievement is not surprising. He had been preoccupied with the relationship between the individual and the state all his adult life. He did not, however, enter politics to reform the Constitution. He believed there was no constitutional impediment to moving forward on the pressing political issues of the day, including the Quebec agenda. Unlike many of his contemporaries, he reasoned that it was premature to make changes to Canada’s fundamental constitutional arrangements just as Quebec was embarking on a long-delayed process of modernization. “Before sitting down to rewrite the constitution,” he wrote in Maclean’s in 1964, “one must have some idea of what kind of society it is intended to govern.” Otherwise, one could expect endless negotiation to meet ever-changing demands. In this prediction, Trudeau the politician proved Trudeau the theorist correct.
A constitutional bill of rights was the one exception to Trudeau’s distaste for constitutional change. He thought that the sustained debate on the subject during the previous decades, the inadequacy of rights protection under the existing Constitution, and the adoption of statutory bills of rights in the provinces provided a sufficient basis on which to proceed. Moreover, the provision of constitutional protection for language and educational rights, as well as for other basic liberties, would undercut growing French-Canadian nationalism in Quebec by releasing French Canadians from their notional Quebec “ghetto.” A bill of rights would fulfil one goal of the original Canadian Constitution—to allow all its citizens to “consider the whole of Canada their country and field of endeavour.” Although securing a constitutional bill of rights was not Trudeau’s reason for entering politics, it was a congenial prospect once constitutional change became unavoidable.
Trudeau’s political ideas about rights took shape in academic study filtered through experience. Quebec premier Maurice Duplessis presided over an authoritarian, corrupt, and nationalist régime that held the province back from general postwar development. The government sacrificed the rule of law to political ends, denied freedom of speech to critics and non-conformists, denied freedom of association to those battling for economic rights against big business, and denied religious freedom to Jehovah’s Witnesses. The Roman Catholic Church wielded extensive authority, maintaining the social order and controlling education. When he left Quebec to study and travel, Trudeau set out to reflect upon and experience other cultures, ways of thinking, and modes of governance. His political views meant he would get no academic employment in Quebec as long as Duplessis was in power. This misfortune, combined with his family wealth, gave Trudeau time to write and work as an activist lawyer in the fields of human rights and labour law. By the time he moved into public life, after a short period as a law professor, he had clearly articulated his political thought and honed his considerable analytic and polemical skills.
Duplessis’ Quebec provided the perfect environment for creating an obsession with liberal democracy. Trudeau came to support the values of individual freedom and self-fulfilment and to champion a comprehensive world-view free of state-imposed nationalist, religious, or ideological preferences. His emphasis on individual freedom merged with an attention to cultural identity, an opposition to nationalism, and a defence of federalism—all elements of his later constitutional politics.
Trudeau considered nationalism the enemy of individual freedom and material well-being. Coming of age in the postwar world, he knew the role that nationalism had recently played in wide-ranging wars, collective hatreds, and unsurpassed atrocities. Even without these excesses, nationalism tended to xenophobia and closed-minded solidarity, thereby preventing any beneficial cross-fertilization among cultures and languages.
Trudeau’s championing of individual liberty, however, did not lead him to the position that political theorists would later denigrate as “atomism,” where the individual is considered independent of society and culture. Although he opposed state-engendered nationalism, he valued cultural identity, and he regarded the protection of language as a means of assuring its continuity. He thought that the state should protect cultural values, so long as it did so “as a natural consequence of the equality of all citizens, not as a special privilege of the largest group.” This distinctiveness would countermand the tendency of modern technology and systems of communication to create homogeneous consumers. To Trudeau, a secure and confident cultural identity was as necessary as individual freedom to the flourishing of the individual, the group, and society at large.
Trudeau admired the federal state as an antidote to nationalism. By dividing authority among one central and several regional governments, democratic federalism required compromise among countervailing visions, powers, and priorities. A larger and ethnically more heterogenous political unit would avoid the tendency to chauvinism and intolerance in the unitary nation-state. Citizens would have choices and potential mobility. Moreover, by accommodating the pluralist, multicultural societies of the postwar world, federalism would facilitate the developing patterns of interstate cooperation. Trudeau’s vision was not so much anti-nationalist as multinationalist.
He regarded the federal structure, with its allocation of economic powers to the central government, and social and cultural matters to the provincial governments, as appropriate for Canada’s intractable half-continent. He particularly admired the practice of equalizing the spending power of provinces—to standardize economic opportunity and well-being across the country. The protection of institutional bilingualism at the federal level and in Quebec acknowledged the full and equal citizenship of those speaking the minority language. The minority language education rights, which he understood were embodied in the protection of dissenting religious schools, assured the intergenerational transmission of both language and culture.
Trudeau was well aware of the growing discontent with the federal system in Quebec, but he thought the critics were laying their complaints at the wrong door. The system afforded Quebec the freedom and the opportunity to develop itself. Sovereign status, in a world of emerging trade alliances, would not offer more. The logic of the nationalist position seemed absurd, first, because its claims to self-determination denied the parallel claims of minorities within the province and, second, because the geographic definition of the nation-state ignored French Canadians outside the province.
Trudeau found fault with three features of the Canadian federal system as it had evolved. Its tendency to consider Quebec as the home for French Canadians produced a ghetto mentality in that province, a general sense of Anglo-Canadian superiority, and an erosion of the French-Canadian presence in other parts of the country. Moreover, the underrepresentation of Quebec in the central administration and the dominance of English meant that French Canadians could not be “at home” in their central government. Finally, the tendency to homogenize everyone into a melting pot of Anglo-Canadian nationalism had the effects of relegating French Canadians to their province and stimulating Quebec nationalism as a counter-force.
The maturation of the Canadian constitutional system might be advanced, Trudeau argued, through adoption of a bill of rights. Such a bill would bolster democracy, individual liberty, and equality. It would also secure minority language rights so that all Canadians, and French Canadians in particular, could engage at both the provincial and the national level throughout the country and have confidence that their children would be educated anywhere in Canada in their own language and cultural heritage. A bill of rights would provide a stable basis, in terms of democratic function as well as individual liberty and identity, to think about other changes.
A constitutional bill of rights would also, he thought, have benign institutional effects. The existing constitutional system burdened the Supreme Court with political responsibilities because it was judging legislation without being restricted by the norms of public law that a constitutional bill of rights would provide. These norms, far from throttling provincial autonomy, would, he argued in “Comparative Federalism” in 1963, allow the provinces to “exercise their autonomy with all the more freedom, since this freedom would come within certain civilizing and democratic standards.” The idea that freedom for political institutions consists not in a lack of constraint but in a conformity to normative standards echoes Trudeau’s personal experience under Duplessis and foreshadows his later debates with the opponents of the Charter about judicial and legislative roles.
In his early political career, Trudeau demonstrated his ability to carry controversial projects by clearly communicating the importance of the liberal values at stake. It is said that Paul Martin Sr. advised rookie members of parliament to avoid the issues of homosexuality, birth control, abortion and divorce. If he gave that advice to Pierre Trudeau, it must have raised the new recruit’s penchant for contrariness—for his agenda for law reform included every one of these forbidden categories. As minister of justice, he introduced legislation permitting therapeutic abortions, legalizing adult consensual homosexual acts, legalizing the dissemination of birth control materials and contraceptive information, and introducing judicial divorce based on a range of fault and no-fault grounds. These statutory reforms effected advances in the protection of individual rights that were realized in other countries not by statute but by court rulings under a constitutional bill of rights.
These initiatives expressed some of Trudeau’s deepest political commitments. The changes reflected his understanding that the legal system should have regard for crime, not for sin; they widened the separation between church and state; and they reflected his antipathy for state-imposed ideologies and moralities and their attendant behaviours. He encapsulated his approach in his well-remembered reiteration of a sentence from a newspaper editorial: “The state has no place in the bedrooms of the nation.”
Later, in his first term as prime minister, he built on the work of the Royal Commission on Bilingualism and Biculturalism to enact the Official Languages Act. Here, to the extent possible under federal legislative jurisdiction, parliament secured by statute the official status of both English and French as well as their use in the executive, legislative, and judicial branches of the federal government. This act was a triumph for the man who, in a brief stint in the federal civil service twenty years earlier, had been incredulous at the fact that he, a French Canadian, could not write a memorandum in French to his superior, also a French Canadian, and marvelled at the absence of a French sign designating the prime minister’s office.
The Front de libération du Québec crisis of October 1970 forced Trudeau to make hard decisions about the limits of individual freedom within civil society. Faced with concerted, criminal acts in the name of Quebec independence, he exercised statutory powers to send the army into Quebec to maintain order. He also proclaimed the War Measures Act, which restricted the ordinary procedural protections of the criminal process. His actions responded to urgent requests by the premier of Quebec and the mayor of Montreal, who considered the situation beyond their control. Although his action enjoyed support across the country, Trudeau drew heavy criticism from civil libertarians as well as those who believed he had seized the opportunity to destroy Quebec nationalism, not merely the political terrorism carried out in its name. Trudeau rejected this criticism. He argued that all liberty presupposes the stability of the political order. Perhaps reflecting on his study of the Weimar Republic, he stipulated that the state must ensure that no exercise of freedom negates the freedom of others. While all accounts recall his taunt “Just watch me!” in response to a reporter’s query about his intentions, he also said in that exchange: “Society must take every means at its disposal to defend itself against the emergence of a parallel power which defies the elected power in this country.” This is not to say that Trudeau believed that the powers he had exercised raised no proper concerns. Two years earlier, as minister of justice, he had proposed various ways to integrate necessary emergency powers into a regime of rights-protection, and in 1978 he insisted in the House that his Charter of Rights take precedence over all legislation, including the War Measures Act. Although this episode remains controversial, Trudeau’s response did quell violence in the nationalist movement in Quebec.
Trudeau’s early political actions suggest that the Canadian political system was sufficiently resilient to meet both its aspirations and its crises without undertaking an ambitious agenda of constitutional reform. We do not know what law reform priorities Trudeau might have pursued had his predecessor, Lester Pearson, not put the Constitution onto the national agenda as the way to deal with surging Quebec nationalism. As the recognized expert on federalism in the federal cabinet, Trudeau was the person to whom the government, and later the country, turned.
From 1967 on, a constitutional declaration of rights was the cornerstone of Trudeau’s constitutional policy. Inevitably, such a declaration would involve the most intractable issue within Canadian constitutionalism: patriation of the British North America Act, 1867. Canada’s written Constitution was, in part, a statute amendable only by the body that had first enacted it, the parliament of the United Kingdom. Canada functioned as a fully independent country in every respect but this one. Constitutional amendment required what Frank Scott, the esteemed constitutional law professor at McGill Law School and Trudeau’s acknowledged mentor, called “our rendezvous with the B.N.A. Act.” Canada would have to go back to Westminster one last time to have it enact a domestic amending formula.
No one doubted the desirability of vesting Canada with full legal independence from Britain, but what was the new amending formula to be? The quest for unanimous provincial agreement on this issue had stymied Trudeau’s predecessors. A holdout province could make demands, beyond the terms of the formula itself, as the price of its consent—as Quebec had done on several occasions despite having already secured the highest prize, a veto over future constitutional change. The desire of other governments to effect patriation was hostage to one province’s ever-enlarging appetite for increased powers.
Trudeau expended considerable effort as prime minister seeking unanimous agreement on a new amending formula. At his moment of triumph in 1981, he finally secured the agreement of all provinces except Quebec on the basic plan he had announced in 1967 as minister of justice: patriation with a constitutional declaration of rights. In the interval, he had tested every conceivable substantive and procedural variation on this theme in the hope of securing unanimity. On the substantive side, his government widened the agenda to include a range of other significant changes sought by the provinces, including reform of the Senate and the Supreme Court and changes to the division of powers between the federal and provincial governments. That dynamic failed because there was no basis on which to call closure to the list of provincial demands or to sustain a meaningful federal state, given the combined effect of the changes proposed. So Trudeau offered patriation alone and subsequent discussion of further reform. His early hope for a wide-ranging Charter of Rights and Freedoms succumbed to the realization that the negotiation process would produce consensus, if at all, only on a relatively ineffective Charter. In terms of process, the range of possibilities also spanned the spectrum: patriation with unanimous provincial consent, with some provincial support, and without provincial consent. In a futile effort, before losing power in 1979, Trudeau even moved off his constitutional agenda, suggesting a statutory bill of rights at the federal level, with provision for the provinces to opt in later.
Until his final term as prime minister, Trudeau’s rendezvous with the B.N.A. Act remained beyond his grasp. It is likely that any other politician would have put the project aside, as previous prime ministers had done in the 1940s and 1950s. But there were three factors that militated against this course of action. First, Trudeau seemed to have an endless store of personal resources for this battle. The Constitution was his personal project, originating in his academic understanding of individual liberty as the goal of social organization and his related belief in federalism as the appropriate system for pluralist societies. This was not abstract theorizing for Trudeau: it was daily affirmed by his presence, as a member of Canada’s French-speaking minority, in the central government, surrounded by other French-Canadian politicians and bureaucrats.
Second, events precluded abandonment of the project. Trudeau felt he could gauge the reasonableness of the provincial premiers’ demands. As long as the process made some sense, he continued to engage. His commitment ebbed when it became apparent to him that the process was futile because federal concessions only increased provincial demands. In exasperation at the process in the late 1970s, he stated, “I have given away the store.” “Who,” he demanded, “will speak for Canada?” Not his provincial interlocutors and not the federal Conservative Party. Their vision of Canada, in his view, amounted to nothing more than a confederation of shopping centres; their ideal prime minister would be a head waiter satisfying the provinces’ increasing appetites for more power. Nevertheless, Quebec’s evolving nationalist agenda kept the Constitution on the front burner.
Third, the prospect of a constitutional declaration of rights enjoyed sustained and growing support across the country. Even the provincial premiers could not object to its substance, for by the time the Charter became the central issue in the constitutional wars, all the provinces had their own statutory bills of rights. The fact that Trudeau’s project captured the imagination of Canadians proved the decisive factor in its ultimate adoption.
The defeat of the Liberals in May 1979 seemed to mark the end of Trudeau’s hoped-for resolution. The minority government of Joe Clark took a more flexible approach to both federalism and the Charter. It accorded pre-eminence not to individual freedom, but to majority rule based on moral, spiritual, and family values. These efforts met with no success. Perhaps the short-lived Clark government simply ran out of time.
The separatist government of René Lévesque had delayed its promised referendum on Quebec sovereignty in the expectation that Trudeau would lose the 1979 election to a Conservative government without representation in Quebec. As fate would have it, however, the Conservative minority government fell unexpectedly, and in 1980 Lévesque found himself facing a re-elected and re-energized Trudeau, bolstered by a mandate of seventy-four out of the seventy-five Quebec seats in parliament. Trudeau had intervened effectively in the dying days of the referendum campaign, invoking his particular form of Canadian patriotism and offering Quebeckers “constitutional reform” in return for their No vote. This promise was so vague that many Quebeckers cried foul when Trudeau subsequently stood poised to deliver nothing more than his classic vision of patriation and a Charter, rather than a new place for Quebec within the federation. But Trudeau maintained that his referendum speeches, and indeed his life’s work, had raised no broader expectations.
The Charter that he offered the country in a nationally televised speech in October 1980 included a full range of guarantees: fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, and language rights. The guarantee clause made rights claims “subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government,” a formula designed, despite the cabinet’s intention to offer a “first-class” or “Cadillac” Charter, to mollify those provinces anxious to preserve the legislative upper hand. The package also offered a future referendum for the people to choose between two alternative approaches to a new amending formula: the Victoria Charter formula of 1971, a region-based formula that effectively gave vetoes to both Quebec and Ontario, with an added referendum mechanism to introduce public consultation if the federal-provincial dynamic created deadlock; and a provincial proposal. The referendum proposal was an attempt to emancipate the process—not the substance—of constitutional change from the dead hand of the first ministers. Despite the popularity of the Charter, as revealed by polling and nurtured by an intensive federal advertising campaign, Trudeau envisaged no public involvement by Canadians in formulating the terms of their future rights.
The government’s intention was to ride the wave of the Charter’s popularity to a quickly enacted amendment by the British parliament. The Charter was to apply to the provinces, even without their agreement. Trudeau declared the end of bargaining “freedom against fish, fundamental rights against oil, the independence of our country against long-distance rates.” His opponents ultimately succeeded in slowing him down, but not stopping him. In the fascinating way that process intertwines with substance, the effect was to improve the Charter immeasurably—by Trudeau’s standards.
Three of the opposing provinces—Manitoba, Quebec, and Newfoundland—asked the courts whether Trudeau’s “unilateral” initiative could result in a British amendment having legal force in Canada and whether Trudeau was departing from past constitutional convention. No one in the constitutional trenches expected the provinces to win in the courts, but the judges might cast some light on an issue sizzling unproductively in the federal-provincial frying pan.
The federal Conservatives proposed a nationally televised, joint committee of the Senate and the House of Commons to review the terms of the government proposal. This move was not without risk. Someone surely anticipated, despite public disenchantment with Trudeau’s unilateral approach, that the Charter’s popularity across the country would ultimately help the Liberals. Previous efforts to tap public opinion on the Charter had revealed a public increasingly passionate and informed on the terms of the debate. The joint committee provided the opportunity for unprecedented public engagement in the Charter project. Experts in rights-protection came forward with blistering criticism of the draft Charter. Day after day, public interest groups presented detailed analyses of the Charter’s shortcomings. Ninety of the committee’s 267 televised hours had focused on the Charter. There was every indication that the country was watching, and the result was a much improved Charter text—as a legal instrument but also as a document bearing the legitimacy of public participation and attention.
Among experts, professionals, and members of the general public, few rejected the values expressed in a constitutional guarantee of rights. Controversy flourished on the best delivery system: Should questions of liberty, equality, and fairness continue to be resolved by elected and accountable politicians in the give and take of ordinary politics, or should the Constitution vest their determination in the courts? Those who supported the Charter believed that these values were of such prime importance that the Constitution should withdraw them from the political arena and secure their guarantee by judicial review—through the application by judges of legal analysis divorced from political considerations and cost-benefit analysis. The critics of the Charter saw this role as an anti-democratic rule by élite, unrepresentative, life-appointed judges. Conservative critics feared that the courts would be too liberal; liberal critics predicted the opposite result. The premiers were split on this question. Polls suggested that the public was divided as well: Support for the Charter was enthusiastic, but Canadians, with an eye to past practice, doubted whether judges could adequately do the job.
This institutional question became the focal point of the Joint Committee’s deliberations. The Charter text under examination protected the guarantees only tentatively, permitting governments to impose “generally acceptable” encroachments. Experts and the representatives of a wide range of interest groups were extremely critical. What past denial of rights had not enjoyed “general acceptance?” Representatives of the very people for whom rights protection offered most—women, the disabled, the aged, religious and ethnic minorities, aboriginals—said they would forgo this Charter because it would waste what might be the only chance for constitutional change. They denounced the federal cabinet’s “Cadillac” Charter as a “Mack Truck” version—because one could have driven a huge vehicle through it.
Justice Minister Chrétien welcomed the criticism because it meant he could return to the Liberal government’s original design. Limitations on Charter rights would have to be “prescribed by law,” “demonstrably justifiable,” and consistent with a “free and democratic society.” These impenetrable words strengthened the Charter immeasurably by invoking the language of postwar rights-protecting systems, both national constitutions and the international human rights-protecting instruments. They meant that governments would have to work very hard to encroach on a Charter guarantee. Charter rights were to be the norm; limits on rights were to be rare, requiring full justification.
The rights guarantees improved as well. The equality rights, particularly those relating to sex and disability, gained ground. The minority language education rights expanded. Changes strengthened the hand of trial courts to exclude evidence derived in breach of Charter guarantees where the administration of justice would be called into disrepute. Judges were charged to read the Charter consistently with the “preservation and enhancement of the multicultural heritage of Canadians.” Beyond the parameter of the Charter text, the committee’s work led to the constitutional recognition of aboriginal and treaty rights for the first time.
With the revised Charter text back in the House of Commons, but blocked by an opposition filibuster, Trudeau agreed to await the Supreme Court of Canada’s decision on the appeal of the provincial reference cases. In September 1981 the Supreme Court settled the legal question as expected. A Charter enacted over the objections of the provinces would have legal force in Canada. But, because there was no precedent, the majority recognized a non-binding constitutional practice requiring at least “substantial” provincial consent for an amendment having such restricting effect on provincial powers. This extraordinary judgment perhaps reflected the Court’s discomfort with the prospect of enforcing a Charter against eight legislatures whose governments objected to it. The Court might be understood as reformulating the dominant refrain in the Joint Committee, though on the grounds of the process of constitutional reform rather than its substance: A Charter enacted as Trudeau proposed might lack political legitimacy and thus be worse than no Charter at all.
The Court’s endorsement on the legal issue might have sent Trudeau’s proposal on its way to the Parliament of the United Kingdom had he had full confidence that the British government would act expeditiously on a request for amendment lacking much provincial support. Despite his public bravado—” Let them hold their noses”—he must have harboured doubts. Margaret Thatcher’s government was cool to the Charter—why should the United Kingdom do this for Canada? A committee of the British House of Commons discovered a residual colonial responsibility to protect Canada’s federal structure. The provinces, particularly Quebec and Alberta, having apparently despaired of appealing to their constituents at home, dropped a small fortune in wining and dining UK backbenchers to their point of view. In addition, Trudeau knew that the judicial recognition of a conventional requirement of “substantial” provincial support in Canada would suggest the existence of a reciprocal rule of practice binding on the UK Parliament as well.
Trudeau now faced resistance from most of the provinces, the highest court in the land, the federal Conservatives, and the British government. He had to cede. He called “one last” first ministers’ conference for early November 1981. Most observers anticipated continued deadlock between an obsessed prime minister and eight intransigent provincial premiers, but the end was in sight. In retrospect, one realizes that a number of factors had strengthened Trudeau’s hand. The Charter’s new legitimacy, endorsed by the work of the Joint Committee, precluded the old game of reducing the rights, enlarging the basis of their limitation, or adding opt-out clauses. In place of the presumed unanimity rule, which had made it cost free for a number of fence-sitting premiers to band together with Trudeau’s strongest opponents, the Supreme Court had supplied, but not defined, a requirement of “substantial” consent. Ottawa likely lacked any means of sweetening the deal for Quebec, since the cause of separation precluded any demonstration that “federalism worked.” But in seeking “substantial” support, Trudeau had only to win over several of the least-committed members of the “Gang of Eight.”
In addition, the premiers had no reason to doubt that Trudeau would proceed unilaterally. He faced at best some constitutional embarrassment in getting what he wanted. Alternatively, a refusal by the UK Parliament to act on his request would have precipitated an unprecedented constitutional crisis, which Trudeau might use to build support for his initiative as an affirmation of full independence of Canada from its former imperial parliament.
Trudeau made the expected move in an unexpected way. He broke the solidarity of the Gang of Eight by isolating his strongest opponent, Quebec’s René Lévesque. As a new champion of public participation in constitutional change, Trudeau suggested a referendum on the Charter in two years. The idea appealed to the separatist premier, who could not challenge the legitimacy of consulting the people and who seemed to relish the idea of a rematch in which he would battle Trudeau to defeat on his Charter. We don’t know if Trudeau anticipated this response. It is more likely that he thought a referendum might offset the lack of provincial executive approval in the eyes of the British. In any event, Lévesque’s reaction effectively shattered the rule of unanimity subscribed to by the gang. The other premiers had no referendum score to settle with Trudeau, and they could see no advantage in a campaign against a popular “people’s package” of constitutional reforms.
The pieces of a deal quickly fell into place. With the exception of Quebec, the holdout premiers accepted the Charter, with the addition of a “notwithstanding provision,” variations of which had been their mainstay throughout the drafting process. This provision enabled the federal and provincial governments to subordinate some Charter rights through legislation expressly indicating this effect. The suspension would have a five-year sunset clause, so that elections would offer the opportunity to debate the suspension of the Charter guarantees. The premiers also secured adoption of their preferred amending formula. The process had exhausted itself—or so it appeared. In the final horse-trading, some of the protection for equality rights for women and guarantees to the aboriginal peoples had fallen by the wayside. The grassroots forces unleashed by the Joint Committee arose in protest. Surprised at the organizational skills and intensity of the lobbying efforts, the premiers agreed to reinstate these guarantees. Efforts to bring Lévesque into the agreement with further offers failed—although the Quebec populace, and its representatives in parliament, supported the Charter.
Quebec lost heavily in this round of constitutional renewal. The court references it had initiated with two other provinces resulted in the declared end of its strongest card—the presumed unanimity requirement for patriation. The new amending formula lacked the Quebec veto on constitutional change that Trudeau had willingly offered for more than a decade. Lévesque had reluctantly supported this formula for the sake of creating some shared policy for the opposing provinces, taking what seemed at the time the small risk that it would find itself in a deal binding Quebec. The gamble failed. Turning to the courts to secure legal protection against its own political strategy, Quebec learned from the Supreme Court what it feared—that Lévesque’s ploy had solidified into constitutional law. Quebec also lost some of its legislative authority over language policy owing to the guarantee of minority language rights and the exclusion of these rights from reach of the “notwithstanding clause.” Considering that it had kick-started the constitutional reform process for its own gain, these results marked no measure of success.
It is commonplace now in Quebec politics to direct scorn at the round of deliberations that culminated in the 1981 amendments. The assertion is that Quebec was left out in the final deal, deserted by its fellow provinces and betrayed by Ottawa. This account is a strangely simplistic description of the complicated dealings that lasted more than a decade—one that assumes that the separatist government was seeking anything except the collapse of the constitutional negotiations. The astonishing risk that Lévesque took with the amending formula indicates that his intention was to scuttle Trudeau’s project rather than to secure Quebec’s place within it. In any case, his nationalist aspiration for Quebec sovereignty was inconsistent with Trudeau’s rejection of nationalism in favour of individual liberty, federalism, and the full integration of Quebeckers in a national, multicultural state.
Despite his singular achievement in securing a constitutional Charter for Canada, Trudeau has complained that political exigencies forced him to settle for a flawed instrument, a Charter that failed to put fundamental rights and freedoms beyond the reach of the legislative process. He has been particularly critical of the notwithstanding clause—embodied in the final compromise—which permits legislatures to subordinate fundamental, legal, and equality rights, if they do so expressly in the body of a statute, for a maximum, renewable five-year period.
Trudeau’s objection to the notwithstanding clause warrants examination. Was the Charter draft he championed in the final negotiations, with its remarkably wide clause that permitted a limitation on rights, more clearly aligned to his political philosophy than the Charter that was finally formulated in the courts, with its principled, narrow limitation clause and legislative notwithstanding clause? Where Trudeau the politician felt the sting of political compromise, might Trudeau the political theorist have recognized an innovative complex of institutional roles having the potential to realize some of his deepest political commitments?
To its critics, the notwithstanding clause gives politicians an easy escape route from the Charter’s strictures. Those who supported the Charter laid a similar charge against the wide limitation clause in the penultimate formulation, arguing that it would, in effect, have granted judges carte blanche to do what elected representatives were free to do without the Charter—subordinate rights to “reasonable” and “generally acceptable” political preference. Although they secured the narrower and more principled limitation clause, many believed that the victory was rendered valueless by the adoption of the notwithstanding clause.
The combination of the narrow limitation clause with the notwithstanding clause, however counter-intuitive it seems, may serve rights protection effectively. These two provisions enlist the institutional strengths of both courts of law and representative, accountable legislatures in forwarding the Charter’s guarantees. Neither has an easy way out.
In combining these two institutional provisions, the final text of the Charter created an innovation in the institutional arrangements for rights protection. It charges the courts with the task of principled articulation of the content of the rights, the fact of infringement in individual cases, and consideration of the justificatory force of the government’s proffered limitation argument. (Yet, ironically, the trend in the case law in the Supreme Court of Canada has been away from the narrow and principled limitation of values encapsulated in the final text.) The notwithstanding clause supports this narrow judicial function. It does not simply permit the system to revert to majoritarian legislative sovereignty, but provides a narrow power restricted so as to intensify the legislators’ broader representative responsibilities and accountability.
Designating a law as contrary to Charter rights sets in motion political repercussions beyond what its policy content would generate within ordinary majoritarian politics. Such a law can unleash a wide range of protest, to the extent that there is a strong commitment to rights protection in the immediate constituency, across Canada, and in the world at large. Premier Bouchard has recognized this possibility and has declined to use the clause to extend the sign law, contrary to Charter rights, or to reinstate the provisions of the Quebec referendum law, when they were invalidated for the same reason. As explanation, he has cited the strictures of the Quebec Charter, the Canadian Charter, and obligations under international law. He realizes that reliance on the notwithstanding clause would undermine the long-term sovereigntist project, which requires a good international reputation on rights and minorities. Finally, the pan-Canadian firestorm generated in Alberta in the spring of 1998, when the government announced that it would use the notwithstanding clause to remove equality rights from those people who had been sterilized under the province’s former eugenics law, demonstrates that suspension power under the notwithstanding clause is temporary; and that a law so sheltered from Charter challenge can become an ongoing political irritant, particularly at election time.
In this institutional structure we see realized Trudeau’s commitment to liberal democracy, postwar constitutionalism, and the pluralist and multicultural society bound together by rights-based constitutionalism. Consistent with his approach to institutional responsibility, courts would operate under the discipline of public law principles. And consistent with his life’s work as a parliamentarian, legislative representatives would continue to hold responsibility for protecting and forwarding the values of the Constitution.
One cannot help but think that Trudeau, dissociated from his own involvement, would appreciate this complex interplay of constitutional values within and beyond Canada, the propriety of an institutional role, and continuing public engagement. One could even identify the general disdain for legislative invocation of the notwithstanding clause as the post-Charter manifestation of the public support of the Charter that provided the legitimating foundation for his sustained commitment to its adoption.
Trudeau’s commitment to the charter was sufficiently strong for him to denouce the proposed constitutional amendments contained in the Meech Lake and Charlottetown accords, which were conceived by Brian Mulroney to bring Quebec back within the constitutional fold. The full story of Trudeau’s relationship to the Charter must therefore include the extraordinary battle he waged, as a private citizen, for its full retention.
Trudeau faulted the Meech Lake accord, in part, because it included a directive to the courts to interpret the Constitution, including the Charter, consistent with the “recognition of Quebec within Canada [as] a distinct society.” In addition, the text affirmed the role of the legislature and government of Quebec to both “preserve and promote” its “distinct identity.” Trudeau analysed the effect of these proposals on the Charter in these words: “the accord has empowered one provincial government to subordinate the rights of every individual Canadian living within its borders to the rights of a chosen community, presumably, the French-speaking majority.” To illustrate his point, he noted that Premier Robert Bourassa, who had sought this amendment, had expressed a similar assessment of its effect when he had used the notwithstanding clause to reinstate his French-only sign law, after the Supreme Court had invalidated the statute for breaching Quebeckers’ Charter guarantees to freedom of expression. National public opinion had protested that action. Bourassa, in contrast, exulted in having subordinated individual rights to collective rights. He also predicted that the promised distinct society clause would in effect expand the National Assembly’s powers to encroach on Charter rights, without exacting the political price, at home and abroad, of using the notwithstanding clause. Moreover, the proposed distinct society clause would contract within Quebec the guarantee of those rights which in 1982 had been put beyond the reach of the notwithstanding clause—democratic, mobility, and linguistic rights. The distinct society clause would thus undermine the most basic principle that had animated Trudeau’s desire for a Charter—indeed, the most basic principle of a rights-protecting regime—that all citizens are equal rights-holders.
Trudeau was even more critical of the Charlottetown accord. Its distinct society clause was one of a number designed to subordinate Charter guarantees—such as gender, ethnic, and racial equality—to Quebec’s mandate in respect to its “unique culture” and French-speaking majority. Trudeau characterized the purpose of these clauses succinctly: to provide governments with protection from the constraints imposed by the Charter’s guarantees of equal, individual rights. While Trudeau had worked to limit government in favour of the individual on the basis of cultural and ethnic equality, Mulroney’s constitutional agenda meant reducing those limitations in the name of cultural and linguistic solidarity.
In the debate on both the Meech and Charlottetown initiatives, Canadians re-experienced Trudeau’s ability to mobilize public support for his vision of the relationship between the individual and the state. As prime minister, he was able to win the public over to his idea for entrenched rights and freedoms despite opposition from all quarters; later, as a private citizen, he acted to protect the Charter from attempts to dislodge its primacy and, in particular, to undermine its promise of equal citizenship.
Since 1982, the Charter has become part of the basic fabric of our lives, shaping the legislative policy process and providing citizens and public interest groups with the possibility of asserting their rights in courts of law. No major issue passes through our lives without some reflection on its Charter implications: the permissibility of euthanasia; the rights of homosexuals to state support for their relationships and for health and employment benefits; the treatment of the disabled; restrictions on biker gangs; deportation of alleged murderers to the United States, where they might face the death penalty; or the Ontario government’s transformation of local government. Trudeau’s idea of Canada as a community of rightsholders is taking root.
Trudeau’s desire for public engagement in constitutional questions has also taken root. The Meech Lake accord went down, in part, because of the perception that the first ministers had reverted to the pre-1981 process, making the final deal entirely through executive accommodation without much concern for legislative process or public participation. For that reason, the federal government approached the Charlottetown accord in a different way, widening its substantive appeal by including aboriginal self-government and making the agreement subject to a national referendum. A remarkable indication of the changed nature of our constitutional politics was the success of the grassroots movement to force the Mulroney government to release the draft constitutional text before the referendum, so that citizens might cast their votes informed by the effect the amendments might have, not just the political aspirations of the negotiating parties. Some governments have now indicated that they will seek public agreement in a referendum before seeking approval for future constitutional proposals in their legislatures. The Constitution has been opened up to the claims of a wider constituency.
Those who would minimize the extraordinary role that Trudeau played in Canada’s acquisition of a constitutional bill of rights in 1982 might suggest that Canada had merely fallen in step with the general postwar proliferation of such documents, especially in former British colonies. It is true that Britain provided others of its colonies, such as India, with bills of rights when they secured independence. But this pattern emerged too late for Canada. The securing of a constitutional declaration of rights in Canada was a domestic project.
Canada also departed from the pattern of those countries that acquired their bills of rights in the context of extensive, often unprecedented, political upheaval. For the United States and France, the precipitating event had been revolutionary rejection of monarchy. Equality entitlements had entered the US Bill of Rights after the Civil War. Defeat in the Second World War led to the imposition of democracy and bills of rights on Japan and Germany. Peaceful transforming circumstances have been no less dramatic—for example, the end of the Cold War for Eastern Europe and the end of apartheid in South Africa. Canada’s story pales by any measure of comparison. How then to explain Canada’s experience?
The historical record reveals that, among his Canadian predecessors and successors alike, Trudeau alone saw his objective through to completion. Demands for constitutional change were building, initially in Quebec and later in the western provinces; but Trudeau did not simply react. He realized the full extent of Quebec’s challenge to Canadian unity and the need to bring the Constitution into line with Canada’s, and the world’s, evolution. He formulated a constitutional future that he believed would accommodate French Canada within Canada. He often set the terms of debate and dictated the political options. In the final period, he brought Canada to the brink of constitutional crisis for the sake of constitutional reform.
In an interview published in Cité libre in 1997, Trudeau affirmed his commitments to individual over national sovereignty and the need for the Charter to embody not only the traditional liberal rights and freedoms he considered generic but also the language rights necessary to constitute linguistic justice in the particular circumstances of Canadian federalism. These are the ideas the young law professor brought with him to Ottawa over thirty years ago. The consistency of Trudeau’s vision over time did not produce his ideal Charter. But his commitment to a Charter embodying his principles produced an intensive debate, yielding a distinctive articulation of rights guarantees as well as a new institutional arrangement in which rights are framed by a judicially applied limitation clause and a legislative notwithstanding clause. These features of the Charter strongly influenced the emerging constitutional systems in Israel and South Africa, as those divided countries looked to Canada’s recent constitutional history to understand what is generic and what is specific in the constitutional protection of rights. Canada’s Charter has become a model to many countries that are moving from legislative sovereignty to rights protection. What appeared to be chaotic to those who lived through the Charter’s evolution now appears to others as creative steps in the development of operative constitutional systems.
Trudeau has said that the politician is a teacher. His political career provided a twenty-year national seminar on the nature of citizenship in the modern, liberal, multicultural state. He gave Canada the clearest and most coherent articulation of how its history could support its destiny—a vision informed by constitutional theory and presented as a model for the emerging multicultural and economically integrated world. In this vision, the common bond of equal rights binds together a pluralistic and far-flung, even a divided, population. Whether one agrees with Trudeau or not, one cannot deny the clarity, consistency, and logic of his united Canada.
Constitutions are organic instruments. Canadians’ ideas about rights, nationalism, and federalism will continue to evolve. If Trudeau’s legacy is valued, individual liberty and equality, group support, and public engagement in constitutional development will continue to be integral components of that process.