ARCHITECT OF HIS OWN MISFORTUNE: THE FAlLURE OF THE TRUDEAU VISION FOR

Gregory Ian Csont Graduate Program in Political Science

Submitted in partial fulfilfment of the requirements for the degree of Master of Arts

Facuity of Graduate Studies The University of Western Ontario London, Ontario March, 1999

O Gregory Ian Csont 1999 National Library Bibliothèque nationale du Canada

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The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fkom it Ni la thèse ni des extraits substantiels may be printed or othenivise de celle-ci ne doivent être imprimes reproduced without the author's ou autrement reproduits sans son permission. autorisation. ABSTRACT in 1980, Pierre Ellion Trudeau attempted to forge a nation-centred and rights-onented concept of Canada through the entrenchment of the Canadian Charter of Rights and

Freedoms. However, due to the collectivist sections of 15, 25,27 and 28, the Charter has instead served to produce a hgmented and asymmetric sense of citizenship that serves to undermine the Trudeau vision. Specifically, the post- 1982 constitutional fragmentation of Canadian society is the byproduct of the opening up of the constitutional prccess in

1981 by Trudeau. The aemise of both the Meech Lake and Charlottetown Accords and the staging of a 1995 referendum on separation provides evidence that the hgmentation of Canadian society still lacks a cure and that the phenornenon of amendment overload has afnicted the nation. As a consequence, the failure of the

Trudeau vision for Canada is readily apparent. For my parents, Peter and irene ACKNOWLEDGEMENTS

1 am indebted to my advisor, Professor Michael Lusztig, whose numerous comments, constructive criticism, and direction strengthened this thesis. TABLE OF CONTENTS

Page

Certificate of examination Abstract Dedication Acknowledgements Table of contents

1 Introduction

2 Trudeau's Constitutional Vision The Values of a

3 The Road to 1982 Creation of the Charter of Rights "Welcome to the 1980s" Unilateral Action Provincial Opposition The National Level The Breaking-Point The Special Joint Cornmittee Cairns, the Citizens' Constitution and Charter The Allied Dilemma Women and Constitutional Status Equality-Seekers and the Charter Aboriginals and the Charter Multicultural Canadians and the Charter The November Accord

4 Constitutional Fragmentation Status and the Unitary Mode1 of Citizenship The Politics of Constitutional Modification Post- 1982 The Charter and Minoritarianism

5 Discontent and Amendment Overload Constitutional Modification Amendment Overload in Canada

6 Conclusion

Vita CHAPTER ONE: INTRODUCTION

Since 1982, the Canadian Charter of Rights and Freedoms has become part of the

basic legal fabric shaping our Iives as Canadians. Moreover, the Charter is also the

lashg legacy of one profound politician - Pierre EIliott Trudeau. However, while the

implications of constitutionai reform have influenced many individuals to cast the Charter as Trudeau's greatest political achievement, further research suggests otherwise. indeed, while the Charter is superficially consistent with the coherent and logically drawn vision of the constitution that Trudeau had long articulated, the 1982 amenciments have actudy served to undermine his vision and dong with it, the stable national community that was to be forged in an experirnent of constitutional enginee~g.

Trudeau entered federal politics in 1965 advancing the ideals of a liberal democratic society. Detemiined to forge a nation into a national cornmunity - a federalist conception of Canada that mitigated the centrifiigal forces of dualism and regionalism associated with province-building, Trudeau focused on the rights of the individual. Placing an emphasis on the notion that the individual was the basic and indivisible unit of society,

Trudeau professed that, "the collectivity always has rights delegated to it by the individual. The collectivity is not the bearer of rights; it receives the rights it exercises fiom the citizens."' This personal reflection guided the Trudeau dream to fiord individual rights constitutional protection. The political objective underlying the entrenchment of individual rights was the strengthening of the Canadian national comrnulzity. By embracing individuals and not temtorial collectivities, Trudeau believed

Pierre Elliott Trudeau, A Mess That Deserves a Bin No," (: Robert Davies, 1992), p.58. that the particularisms of province, region and group could be diminished through forging

a nation-centred and rights-oriented concept of Canada that ernphasized the common

values of citizenship. Therefore, in order to foster the development of a Canadian

national co~~llllunity,Trudeau engaged Canadians in what Russell identifies as mega-

constitutional politics, an exercise of intense constitutional renewal concemed with

"reaching agreement on the identity and fundamental principles of the body politic."'

Russell identifies two different operationai modes of constitutional politics, Iow and

mega? Low-level constitutionai politics is concemed with disputing the merits of

specifïc constitutional proposals. Constitutionai politics at this level is characterized by

piecemeal constitutional change resulting fkom either formal constitutional arnendrnents,

informai political practice or judicial interpretati~n.~Russell characterizes constitutionai

change at this Level as "ordinary" or "nor~nal."~Conversely, mega-constitutional politics

is preoccupied with the very nature of the political commuïty. Mega-constitutional

politics probes national unity by directly raising the fundamental question of "whether

citizens of a nation-state share enough in common, in tems of their sense of political justice and collective identity, to go on sharing citizenship under a comrnon

constitution.'" Due to the fiindamental nature of the issue in question, mega-Ievel

constitutional politics is extremely emotionai and intense. At the mega-level, unlike

Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereim People? (Toronto: University of Toronto Press, 1993), p-75. Peter H. Russell, "Can the Canadians Be a Sovereign People?" Canadian Journal of Political Science, XXïV:4 (December 199 l), p.699-700. Peter H. Russell, "The End of Mega-Constitutional Politics in Canada?"e . the Referendum, and the Future of Canada, ed. Ke~ethMcRoberts and Patrick Monahan (Toronto: University of Toronto Press, 1993), p.2 1 1- 12. Russell, "The End of Mega-Constituîional Politics in Canada?" p.2 12. Russell, Constitutionai Odyssev, p.75. normal constitutional politics, '%e constitutional question tends to dwarf aii other public concems.'" In addition, the proceedings of mega-constitutional politics are driven by distinct constitutional visions.' These constitutionai orientations represent a reflection of specific constitutional values. In turn, these values contribute to a specific vision or conception of 'nation.' The emotionality and intemit- associated with mega- constitutionai change is largely attributed to the clash of competing and divergent constitutional visions.

The decision by Tnideau to venture down the path of mega-constitutional politics was a studied option. Low-level piecemeal constitutional change could not have fostered the complete restructuring of Codederation by its inherent failure to question the existence of the nation-state. h order to question the collective , the operationai mode of constitutional politics had to move beyond the ments of specific proposais.

Therefore, mega-constitutional politics represented the ody constitutional forum capable of forging a nation centred and rights-oriented concept of Canada.

As noted above, the proceedings of rnega-constitutional politics are guided by personal reflections on specific constitutional values. Therefore, the emergence of a distinct Trudeau constitutional vision is a bona fide fact. At the core of the Trudeau vision is the Canadian Charter of Rights and Freedoms. The politicai objective underlying the constitutional protection of individual rights as envisioned by Trudeau was the strengthening of the Canadian national comrnunity on a unitary mode1 of citizenship.

-Ibid., p.75. 'W., p.75. However, there were certain unforeseen consequences inherent in die final version of the

Canadian Charter of Rights and Freedoms that have resulted in widenuig rather than stemming the social divide separating Canadians. This thesis will examine the extent to which Trudeau cornprornised his constitutionai vision by introducing the Canadian

Charter of Rights and Freedoms. Specifically, this thesis will reflect the ciifferences between the original intent of the Charter as envisioned by Trudeau and the extemdities generated by judicial interpretation of the document?

The second chapter of this thesis will outline Trudeau's constitutional vision. The third chapter shall examine the politics of the Canadian Charter of Rights and Freedoms.

Specificaily, the chapter will note the overd importance of non-govemmental support for an entrenched bill of rights leading to the of the constitution. In addition, the chapter will contain a selective analysis of certain Charter clauses namely sections 15,25,

27 and 28 due to their collectivist nature and asymmetrïcal rights discourse. The fourth chapter will illustrate how the enactrnent of the 1982 Canadian Charter of Rights and

Freedoms undemined Trudeau's constitutional vision. The fifth chapter offers some reflections on the impact of the failure of the Trudeau vision for Canada.

Alternativety, Michael Lusztig presents distinct constitutional visions as 'mega-constitutional orientations' (MCOs). See, Michael Lusztig, "Constitutional Patalysis: Why Canadian Constitutional Initiatives Are Doorned to Fail," Canadian Journal of Political Science XXVII:4 (December 1994). By original intent, 1 am referring to the aspirations and expectations surroundhg the Charter as envisioned by Trudeau. CEFAPTER 'IWO:TRUDEAU'S CONSTITUTIONAL VISION

Since Codederation, and prior to the introduction of the Charter, Canadians have been divided on the basis of Language and region. As a res* the govemance of Canada has been a daunting and complex challenge. However, it was this very desire to militate against the effects of heterogeneity associated with Canada's traditionai cleavages that inspired the conception of a distinct Trudeau constitutional vision. Devised as a strategy of national unity, the Trudeau vision has relied on three principle cornponents to perform this mitigating function: officiai bilingualism, interregional economic parity and the

Canadian Charter of Rights and Freedoms."

The formation of Trudeau's politicai philosophy begins in earnest during the 1940s and 1950s. During this period, Trudeau emerged as a staunch opponent of French

Canadian nationalism. Ultimately, these views contributed immensely to the emergence of a distinct Trudeau constitutional vision.

The nationaiid ideology advanced by the Duplessis regirne that govemed the province of Quebec fiom L936 to 1939 and 1944 to 1959, inspired Trudeau's critique of French

Canadian nationalism. Dedicated to the preservation of Quebec's provincial autonomy,

Duplessis and the employed the mechanisrns of the state in numiring a traditional nationdist definition of French Canadian society. Acknowledging the prominent place of Catholicism in Quebec, Duplessis and the Roman Catholic Church formed a theocratic alliance. The traditional and clerical nationalism advanced by the

Duplessis regime was "charactenzed by a 'rnythical' and 'historicist' mentality which

'O Lusztig, "Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fait," p.755. made a cult of clifferences and the past" by accentuahg societal characteristics that defhed French Canadians as a minority, Roman Catholic, French and ruraVagrarian.l1

Influenced by modem social science, Trudeau began questioning the traditional nationalist definition of French Canadian culture. As a direct consequence of the reactionary conservatism of the church and state, Trudeau argued that "Quebec had stayed provincial in every sense of the word, that is to Say marginal, isolated, out of step with the evolution of the ~orld."~~The traditional and clerical nationalism of the

Duplessis Union Nationale had inspired the development of a siege mentality that served primarïly the interests of the political and religious national elite of Quebec. Trudeau's interpretation was shared by a group of yomg intellectuais and coliectively they formed the Cité libre, a journal with antinationalist undertones. According to Behiels,

"Citélibristes were antinationalists because they believed sincerely that nationalism, like clericalism, had prevented the ernergence of a dynamic, creative, indigenous, French

Canadian culture and society rooted in North ~merica."" The traditional and clericai nationalism of the Duplessis regime represented an impediment to the secularization and democratization of the province's values and insti~ns.~~According to Trudeau and his

Citélibristes colleagues, "French Canadian society would survive and flourish, not because of any nationalist doctrine, but by maturing into an open, democratic, pluralistic,

" Michael D. Behiels, "The Beginnings of Post-War Nationalism in Quebec," Interpretinui~Canada's Past, ed. J.M. Bumsted (Toronto: Oxford University Press, 1993,11), p.625. l2 Pierre Elliott Trudeau, Mernoirs (Toronto: McCIeIIand and Stewart, 1993), p.6 1. l3 Behiels, "The Beguuiings of Post-War Nationalism in Quebec," Interpretine Canada's Past, p.622. l4 W., p.625. secular, urban-industrial society in harmony with, yet distinct fkom, that of the rest of

North Arnerica."'*

The definition of French Canada employed by the clerical and petty bourgeois

nationalists was a matter of significant concern to Trudeau. He noted that, "in attaching

such importance to the idea of a nation, they [the nationalists] are surely led to a definition of the common good as a function of an ethnic group, rather than that of al1 people, regardless of characteristics." I6 As a direct consequence, Trudeau explained that,

"this is why a nationdistic govemment is by nature intolerant, discriminatory, and, when

al1 is said and done, totalitarian."" Undoubtedly, for Trudeau, the regime of Maurice

Duplessis and the Union Nationale represented this exact type of government. In

Trudeau's opinion, "a tmly dernocratic govemment cannot be 'nationalist,' because it must pursue the good of al1 its citizens, without prejudice to ethnic origin. The democratic govenunent, then stands for and encourages good citizenship, never nati~nalîsm."'~

The democratic, secular and urban-industrial Québécois society envisioned by

Trudeau emerged dliling an era of social reforrn in the 1960s dubbed the Quiet

Revolution. The societai and institutional transformations that occurred during the Quiet

Revolution contributed to the extinction of the traditional nationalist definition of French

Canadian society. However, according to Russell, %e decline in traditional

distinctiveness [of the province] was accompanied by an increased politicai assertiveness

-- - " -Ibid. l6 Pierre Elliott Trudeau, "New Treason of the InteIlectuals," Federalism and the French Canadians (Toronto: Macmillan of Canada, 1968), p. 169, " -Ibid, and emphasis on self-go~emment-"'~Whereas the traditional nationalist interpretation of

French Canadian society had promoted a societal mode1 based on rnere survivance, the developing neo-nationdism associated wÏth the was redefining the nationalism of the province under the slogan maiires chez nom. The ethnic chauvinism inherent in the traditional nationalist definition of French Canadian society was even more pronounced in the neo-nationalist interpretation. Neo-nationalists conspired that

"the 'state of Quebec' should assume a cornprehensive responsibility for the fiinctions of the modem state," a notion dependent upon increasing provincial po~ers.'~Trudeau noted that, the extreme extension of ethnic based neo-nationalism was that of separation and the formation of a French Canadian nation-state, a program identified with separatists or advocates of independence." The neo-nationalist doctrine arising from the Quiet

Revolution had the effect of galvanizing Trudeau's anti-nationafist tendencies. The neo- nationalist definition of the common good as a function of ethnic group explains the increasingly antagonistic feelings of Trudeau to the aspiration of Quebec nationalists to build an ethnically hornogeneous state on the temtory of Quebec. Trudeau propounded an alternative course, whereby French Canadians "could scrap the very idea of a nation- state once and for al1 and lead the way toward making Canada a multi-national state.""

Trudeau identified the concept of a multi-national state with 'Constitutionalists', individuals who "reject the bellicose and self-destructive idea of a nation-state in favour

------

" -ibid. l9 Russell, Constitutional Odvssey, p.73. 'O %id. " gdeau, 'Wew Treason of the intellecnials," Federalism and the French Canadians, p. 164. -ibid. of the more civilized goal of polyethnic pl~ralism.~According to Trudeau,

Constitutionalists in their pursuit of a multi-national state &ded the answer to the question: C'without backsliding to the ridicuious and reactionary idea of national sovereignty, how can we protect our French Canadian national qualities?"24 ùi the opinion of Trudeau and Constitutionalists, the Canadian constitution provided an admirable vehicle toward making Canada a tdy pluralistic and polyethnic society.

According to Trudeau, under the federal structure of the British North Amenca Act

(1 867), "the jurisdiction of the federal State of Canada concerns itself with dl the things that have no specific ethnic implications, but have to do with the welfare of the entire

Canadian society."" Conversely, the provinces "have jurisdiction over matters of a purely local and private nature and those that affect ethnic pe~uliarities."~~However, despite provincial jurisdiction in ethnic matters, Trudeau articulated that withùi a pluralistic society "none of the provincial borders will coincide perfectly with ethnic or linguistic delineation~."~' As a consequence, Trudeau cautioned that, "no provincial govemment is encouraged to legislate exclusively for the benefit of a particular ethnic group in such a way as to foster a nation-state mentality at the provincial level.""

Trudeau realized the inherent importance of a federal system of govemment towards the creation of a Canadian national cot~l~unityin which both the French and English could flourish. On the significance of federalism to Canadian politics, Trudeau remarked that : the die is cast in Canada: there are two main ethnic and linguistic groups; each is too strong and too deeply rooted in the pst, too fdybound to a mother-culture, to be able to engulf the other. But if the two will collaborate at the hub of a truly pluralistic state, Canada could become the envied seat of a form of federalism that belongs to tomorrow's world.. . is an experiment of major proportions; it could become a bfiant prototype for the moulcihg of tomorrow's civilization?'

Inherent to the formation of a Canadian national community based on a federai structure of government was the creation of a lasting consensus. According to Trudeau, "a consensus can be said to exist when no group withui the nation feels that its vital interests and particular characteristics could be betfer preserved by withdrawing from the nation than by remaining ~ithin."'~ The nature of the consensus upon which federalism stood was unique. Trudeau explained that federalism, "is an attempt to find a rational compromise between divergent interest-groups which society has thrown together; but it is a compromise based on the will of the According to Trudeau, "the foundation of the nation is ~ill."'~Therefore, federalism represented an institutional structure of society, the essence of which was the operation of a general will. Trudeau's belief in this phenornenon was what inspired his fiuitless and unsuccessful attempt to capture the general will in writing the perfect constitution in 1982.

THE VALUES OF A JUST SOCIETY

Trudeau and the Citélibrisres in their search for an open, democratic, pluralistic and secular society, "placed a priore on the defence and development of civil nghts and

" W. 28 m. 29 m.,p. 178-9. 'O Pierre Elliott Trudeau, "Federalism, Nationalism and Reason," Federalism and the French Canadians (Toronto: Macmillan of Canada, I968), p. 189. 3' m.,p. 195. individual liberties rather than 'a political and religious state which oppresses consciences' in the narne of an ideology cded natioaali~m."~~'Trudeau was particularly alarmed by the oppressive nature of the Duplessis regime that Lead to the Ming of liberal human values on three separate occasions: the asbestos strike, the padlock law and the Roncarelli - an incidence of blatant political interference and the abuse of public trust.

In 1948, Quebec's entire asbestos mining industry was paralyzed as the traditionally docile workers opted for strike-action demanding wage increases and improved safety rneasures to minimize exposure. The anti-labour Duplessis administration equated the strike-action with a Communist led labour revolt and intervened in an attempt to cmh the labour protest. According to Trudeau, '-what 1 found there [in Asbestos, Quebec] was a Quebec 1 did not really know, that of workers exploited by management, denounced by goverment, clubbed by police. and yet burning with fervent ~nilitanc~."~~Reflecting on the importance of the strike, Trudeau described it as "a tuming point in the enrire religious, political, social, and economic history of the province of Q~ebec."~'

Duplessis' cornmunist and socialist apprehensions were also readily apparent in the context of the controversial Padlock Law. The derogation clause of the law declared that,

"it shall be illegal for any person, who possesses or occupies a house within the Province, to use it or allow any person to make use of it to propagate Cornrnunism or Bolshevism

32 p.9Ibid p. 187. 33 Behiels, "The Beginnings of Post-War Nationalkm in Quebec," InterPrethg Canada's Past, p.623. 34 Trudeau, Memoirs. p.63. 35 -ibid. by any means what~oever."'~The case of Job Switzman represents the most notorious use of the law. Switzman was chüïged under the provisions of the law for harbouring Gui

Caron, leader of the Quebec Labour Progressive Party. In 1956, the Supreme Court of

Canada ded that the provisions of the PadIock Law were ultra vires of the provincial

Iegislature.

The religious zeal inherent in the traditional and clencal definition of French Canadian nationalism enticed Duplessis to launch an unofficial war of religious faith against

Quebec's Jehovah's Witnesses- In 1946, the Jehovah's Witnesses distnbuted an anti-

Catholic tract entitied Quebec's Burning Hate. Hundreds of the religious sect's members were charged and imprisoned for disturbing the peace. Frank Roncarelli, a sympathizer of the sect, acted as bondsman for 393 of the Jehovah's Witnesses. Roncarelli's action had the effect of underminhg Duplessis' efforts to stem the religious &ont lead by the

Witnesses. As a consequence, Duplessis retaliated against Roncarelli by revoking the restaurateur's provincial liquor license. [n a press release, Duplessis argued that:

to have pemiitted Frank Roncarelli, self-styled leader of the Witnesses, to continue the use of funds denved fiom a privilege granted him by the Province of Quebec to conduct a campaign inciting to sedition, public disorder.. .would have been to put the Attorney General of the Province in the position of an ac~omplice.~'

In 1958, the chastised Duplessis and ded that Roncareili's right to act as a bondsrnan was totally irrelevant to the sale of liquor.

As a direct consequence of the stifling of civil rïghts and individual liberties coInx.nitted by the Duplessis regime in the above three incidents, Trudeau became a

36 Cited in Leslie Roberts, The Chief (Toronto: CIarke, Irwin and Company, I963), p.39. staunch defender of individual rights and freedoms. Tmdeau styled his interpretation of individual rights and fieedoms as the values of a 'Just Society.' On the Just Society,

Trudeau wrote:

I have long believed that fieedom is the most important value of a just society, and the exercise of Eeedom its principal characteristic. Without these, a human being could not hope for true fulnliment - an individuai in society could not reaiize his or her full potential. And deprived of its fieedom, a people could not pursue its own destïny - the destiny that suits its collective will to live?

However, Trudeau lamented that the fight for fieedom "was already yesterday's battle."3g

As a consequence, Trudeau noted that:

In my thinking, the value with the highest priority in the pursuit of a Just Society had become equality. Not the procrustean kind of equaiity where everyone is raised or lowered to a kind of middle ground. 1 mean equality of 0pp0rtunity."~

Trudeau regarded the principle of equality of opportuaity as instrumental in the creation of a federal pluralistic and polyethnic state. Applied in the context of French -

English linguistic nghts, the principle of equality of opportunity according to Trudeau detennùied that, '?he will be able to express progressive values only if

North Ame~canswho speak it are themselves in the forefiont of progress, that is to Say if they compete on an equal bais with English-speaking Canadians.'"' Otherwise, Trudeau warned, "the French population is in danger of becoming paralyzed by an excess of defensive mechanisms. We French Canadians] will develop the mentality of a

37 Cited in m.,p. 128. 38 Pierre Elliott Trudeau, "The Values of a Just Society," eds. Thomas S. Axworthy and Pierre ElIiott Trudeau (Toronto: Viking Penguin Inc., 1990), p.357. 33 -bid., p358- -Ibid, beleaguered people, withdrawing into Quebec the better to sustain the siege.'"' Thus, equaiity of opportunity was classified as an essential element for success in the Canadian federal experiment. Trudeau fiilther questioned that "how can we cdourselves a just society ualess it is organized in such a way as to give each his due, regardless of his state of birth, his means or his heaitl~?'~~

The Trudeavian quest for equality of opportunity acted as a major force upon Trudeau and his French Canadian colleagues Gerdd Pelletier and Jean Marchand to enter federal politics. In explaining their decision, Trudeau and PelIetier philosophized in the Cité libre that:

Quebeckers have tumed increasingly toward the provincial sphere.. .[; they] continue to be govemed by Ottawa, but they are less and less present there, intellectually, psychologically, and even physicaily. ..The course of federal affairs, if it continues in the same ciimate as in recent years, may shortly have detrimentai resuits for the political union of Canada?

Quebec's 'Three Wise Men' joined the in 1965 in hopes of securing a place of prominence for French Canadians in governing the nation. Trudeau succinctiy stated, "my fiiends and 1 entered federal politics for the precise purpose of proving that French Canadians could be at home in Canada outside Quebec and could exercise their rights in the federal capital and throughout the country.'y45 Ml three were elected to federal office in the 1965 general election.

'' Pierre Elliott Trudeau, "Quebec and the Constitutional Problem," Federalism and the French Canadians (Toronto: Macmillan of Canada, l968), p.46. 42 -Ibid. " Trudeau, "The Values of a Just Society," Towards A Just Society, p.358. Cited in M.,p.360. " m.,p.367. In 1968, &er the federal Liberal leadership convention, Trudezu assumed the role of

Prime Minister fiom Lester B. Pearson and immediately proclaimed his intention to work

towards the development of a Just Society? Later that same year, a general election was

called. Tmdeau's dominant theme of the election campaign in the spring of 1968 was "a

strong and united Canada founded on a policy of equai oppominity for all.'47 Trudeau

explained that the dominant theme, "was the one I approached with the greatest

conviction and the one to which others responded with greatest enthusiasm."4s During the election campaign and the Trudeau Liberals' first tem in office, the concept of a Just

Society underwent a crystailinng evolution. The two main facets of the Just Society,

"lay in equality of opportunity for al1 Canadians regardless of the economic region in which they lived, and regardless of the language they spoke - French or ~n~lish.''~~

Trudeau explained that:

It is important to stress that these two goals - equality of French with English and equality of economic opportunity wherever one lived - were conducive to a conception of the country as a place in which al1 Canadians were working together to make it strong and united. It wodd even be correct to Say that these goals were the spearheads of our political action at a moment in Canadian history when the centrifuga1 forces were more potent than the centripetal, and were threatening to break the country a~art.~'

Trudeau's critique of nationalism and his philosophic views on Canadian federalism contributed immensely to his aspiration of constructing a strong and united country. The pursuit of a Just Society was the means by which he believed his vision of Canada would

46 m.,p.359. 47 -Ibid. 48 -Ibid. 49 m.,p.360. -ibid. come to fi-uition. Collectively, Trudeau's critique of nationaiïsm, his views on federaiism and the pursuit of a Just Society formed the philosophic foundation of a distinct constitutional vision.

Inherent in Trudeau's distinct constitutional vision was the desire to construct a

Canadian national community based on a unitary sense of Canadian citizenship. By adopting a unitary rnodel of citizenship - whereby the subdivisions of the national political community (cultural, ethnic, racial, linguistic or territorial) and citizens' mernbership in them was to be subordinate to membership in the more inclusive national political cornrnunity, Trudeau hoped to overcorne the cenriitlgal forces that favoured the decentrakation of the federation.*' According to this model, Russell notes that, "the sovereign .. .should be based on a sovereign political community of citizens, a sovereign people, united above al1 by the sharing of a common set of individual rights.""

The inherent importance of a common set of individuai rights to the operation of the unitary model accounts for Trudeau's relentless pursuit of a charter of rights and fieedoms.

The centrality of a common set of individual rights to the operation of the unitary model of citizenship raises the notion of equality. The inequable application of individual rights would undermine the intent of a charter of rights based on the unitary model of citizenship that intentionaily militates against the effects of heterogeneity.

Trudeau realizing the inherent importance of equality to his nation-building strategy,

Peter Fi. Russell, "The Constitution, Citizenship and Ethnicity," Ethnicitv and Citizenship: The Canadian Case, ed. Jean Laponce and William Safran (London: Frank Cass and Co. Ltd., 1996), p.97-8. 52 m.,p-97. applied the concept to both the individual citizenry and to the federai nature of the

Canadian political community.

On the level of the citizenry, Trudeau believed that the individual was the basic unit of society. Consequently, rights were bestowed upon individuals not collectivities. As an extension of this belief, Trudeau equated the primacy of the individual with the sovereignty of the Canadian people over al1 institutions of govemment.

The second facet of Trudeau's conception of equaiïty is related to the belief that the

Canadian poiitical comunity was comprised of a national govemment and ten equal provincial governments. This interpretation disputed the claim advanced by the province of Quebec that al1 the provinces were not equal and that one in particular, was pas une province comme les aiitres. Quebec's assertion was based on the two-nations compact theory of Confederation under which the realization of Canada was the result of an explicit agreement between the two founding races - English and French. In accordance with this interpretation, Quebec, as the bastion of the French Canadien people occupied a special place within Confederation. As a consequence, the province demanded powers cornmensurate with founding status and recognition as a . According to

Trudeau,

[the fact] that Quebec is a distinct society is totally obvious. Tne inhabitants of the province live in a temtory defined by its bordes- The majority speak French. They are governed under a particular system of laws. And these realities have been pivotal in the development of a culture which is uniquely their~.'~

However, Trudeau disagreed with Quebec's claim for special status comtering that, this Constitution aiso gave birth to nine other provinces, ail of them distinct fiom the other by reason of their temtoriai borders, their ethnic composition, their laws, and hence their cultures. (A society carmot be distinct in relation to another, in fact, without that other being distinct in relation to the kt)."

Therefore, accorcüng to Trudeau, the federai nature of the Canadian politicai cornmmity encouraged the distinct development of not oniy Quebec, but every province in the codederation. Indeed according to Trudeau, "it was precisely this federalism which enabled and encouraged the development in Quebec of a province that is a distinct so~iety."~~However, while aaiculating the fact that every province was distinct, Trudeau did not subscribe to the notion that distinct identities were cornmensurate with differential powers, a concept synonymous with special status. Trudeau's reasons for rejecting

Quebec's daims for specid status were twofold:

First] 1 would not insult Quebeckers by maintaining that their province needs preferential treatment in order to prosper within Confederation; and second, I believe that in the Long nin this status cm oniy tend to weaken the values protected in this way against competition.. .even more than technology, a culture makes progress through the exchange of ideas and through challenge."

Trudeau's adoption of the unitary rnodel of citizenship and its corresponding notion of equality must be understood in the terms of Quebec's constitutionai aspirations. An inherent product of , the origin of a distinct Quebec constitutional vision dates back to 1867 and the development of the two-nations compact theory of

Confederation. The Quiet Revolution of the 1960s and the separatism of the 1970s in the

Pierre Elliott Trudeau, Against the Current: Selected Writings 1939- 1996 (Toronto: McCIelIand and Stewart,m. 1W6), p.266. 55 m* '6 Trudeau, "Quebec and the Constitutional Probtem," Federalism and the French Canadians, p.32-3. province of Quebec were the two centrd events in the codg of age of a Quebec constitutional vision. The Quiet Revolution symbolized an era of major social refom characterized by Quebec's transformation from the prolonged 'Great Darkness' of the

Duplessis regime to the modem age of an urban and industrial habitat. During this penod,

French Canadian neo-nationalists remained adamant in attributing the cause of the collectivity's misfortunes to the British and the Conquest of 1760.'' According to these neo-nationaiists, political independence offered a source of rectificati~n.~'In a direct attempt to Mer the separatist cause, neo-nationalists presented modernization and independence as synonymous." As a consequence, during an era of constitutional radicalism in the 1960s and 1970s' Quebec's constitutionai objectives embodied in the two-nations theory underwent a significant transformation. Lusztig explains that,

"equality between the two great nations of Canada is still the goal, but is now conceived largely in terrns of equality between the govemments of English-speaking Canada and the .'"

Since the 1960s, Quebec has sought three constitutional objectives that collectively constitute its distinct constitutional vision.6' First, Quebec has demanded a veto over constitutional amenciments affecting the authority of the provinces as a method of contrîbuting to the preservation of its sovereignty in the provincial domain. Second, the province has requested enhanced constitutional status in relation to the rest of the

------'' See Fernand Ouellet, "The Quiet Revolution: A Tuming Point," Towards A Just Societv: The Trudeau Years eds- Thomas S. Axworthy and Pierre Elliott Trudeau (Toronto: Viking Penguin Group, 1990), p.3 15. The interpretation of the Conquest alluded to by Ouellet is formally known as the "decapitation thesis." 58 m. 59 See m.,p.3 15,34 1. Lusztig, ccConstitutionalParaiysis: Why Canadian Constitutional initiatives Are Doomed to Fail," p.757. 61 -Ibid. provincial legislahires to preserve and protect the diversity and particdarisms of

Quebec's French language and culture. Lastiy, the govemment of Quebec has demanded special constitutional recognition as a "distinct society" on the basis that it is pas une province comme les aûpes. Quebec argues that it is deserving of this designation due to the linguistic composition, culture and civil Iaw tradition of the province.

The maturation of Quebec's constitutional orientation in the 1960s coincided with a round of constitutional talks and bargaining between Ottawa and the provinces. These two events signified the embryonic stages in the development of mega-constitutional politics. Russell notes that "Canada's struggle was not fully engaged until the thesis of

Quebec nationalism was countered by the anti-thesis of pan-Canadian constitutional nati~naiism.'"~The Trudeau constitutional vision of Canada emerged in due course as a

"rival nationalist ideology to that of Quebec nationalism," thereby, filling the temporary void." These two competing and divergent constitutional orientations set the stage for

Canada's experiment in mega-constitutionai politics.

Rejecting the basis of the Quebec constitutional orientation, Trudeau was determined to forge a nation-centred and rights oriented concept of Canada. In attempting to articulate and strengthen national identity, the Trudeau constitutional orientation has coilectively relied on the entrenchment of three specific constitutional proposals: officia1 bilingualism, interregional economic parity and the Canadian Charter of Rights and

Freedoms.64

--

62 Russell, Constitutional Odyssey, p-76.

63 SiIbid p.79. Lusztig, "Constitutional Paralysis: Why Canadian ConstituionaI Initiatives Are Doorned to Fail," p.755. Since the Conquest of 1760, la question de la langue fiamaise has been a

fundamental political issue for the province of Quebec. Styled as the enclave of the

French language, the province has historicaiiy been regarded as the protectorate of the

French language. During the 1960s and 1970s, la question de la langue fiancaise

evolved into the pre-eminent political issue cofionting Quebec7s National Assembly.

Amidst the Quiet Revolution, French-Canadian nationalists encouraged state intervention

to ensure the sunrival of the French language in Quebec. The provincial administrations

of Jean Lesage, Jean-Jacques Bertrand, and René Lévesque grappled

with the politicization of la question linguistique. Durhg this penod, the province passed

three major language laws in support of the épanouissement of the French language and

culture.

The first major language enactment of the Quebec legislature designed to support the

épanouissement of the French language was Bill 63, An Act to Promore fhe French

Language (1969). According to the provisions of the bill, al1 graduates of Quebec

schools were required to possess a 'working knowledge' of French. In addition, the

Centres d'orientation et de formation des immigrants were expanded to encourage

immigrants to adopt the French language since most immigrants ovenvhelmingly chose

to leam the English language. Finally, a new OBce pour la protection de la langue jkzncaise was instituted to rnonitor the position of the French language in Quebec and

advise the govenunent on future Linguistic policy.65 However, the neo-nationalists were

not appeased with the contents of the bill due to the fact that fkeedom of choice in the

See Marc Levine, The Reconquest of Montreal: Lanrmage Policy and Social Chan~eIn A Biiinguai Citv (Philadelphia: Temple University Press, 1990), p.79. language of educational instruction was respected. According to Quebec nationalists, the uitimate danger of this phenornenon was the prospect ihat French Canadiens would hd themselves a minority in their own province.

Robert Bourassa's Liberal governent responded to the concerns of Quebec nationalists in 1974 with Biii 22. The Oflccial Language Act, was designed with the intent of making French the Ianguage of work and communication in Quebec. In defiance of the policy of official bilingualisrn supported by the federal government, the law designated French as the sole official language of the province. With respect to education, English language instruction was to be restricted to children who possessed a

'suficient knowledge7 of the English language - a level to be determined through linguistic aptitude testing. In order to promote French as the language of work within the province, the government demanded that private fms seeking government subsidies or contracts hold a certificate of ccfiancisa~ion"demonstrating French as the language of the workplace. However, neo-nationalists complained bitterly that the foahnght restriction of immigrant children to French-Language schools and active state intervention in the private sector were needed to force a major change?

The third piece of language legislation introduced by the province of Quebec was Bill

10 1, the Charte de la langue fiancaise. The intent of the bill was to make the French language the definuig force of Quebec. Under the ternis of the Charter, enterprises employing fifty persom or more were required to conduct business &airs in French.

English language education was restricted to children who had at least one parent

66 See Kenneth McRoberts and Dale Posgate, Quebec: Social Change and Political Crisis (Toronto: McClelland and Stewart, 1980), p. 175. educated in English in Quebec, or educated in English elsewhere in Canada but a resident of the province when the law was enacted. In order to grant a visage fiancais to the province, the provisions of Bill 101 limited language on outdoor public and commercial signs to French only.

The unilingual aspirations inherent in the above pieces of language legislation contradicted the spirit of Trudeau's bilingual language philosophy. IdentiQing the

English and French language as elements contributhg to the identity and fundamental principles of the Canadian body politic, Trudeau committed himseif to a policy of official bilingualism. Believing that the scope of language nghts were applicable to the whole of

Canada, the Trudeau Liberals enacted the Officiai Languages Act (1969), recognizing

English and French as the official languages of Canada.

Striving to build a stronger sense of Canadian nationhood, Trudeau insisted on strengthening the statutory enactment of officiai bilingualisrn through constitutional entrenchment complete with the addition of a provision pertaining to minonty education nghts. Trudeau' s plan of constitutiondy guaranteeing minority language rights constituted a shrewd political tactic on two fronts. First, the applicability of the policy across Canada assured the preservation of the French language cornmunities outside

Quebec, and the English-language comxnuaities in that province. Second, as noted by

Russell, the advancement of rninority education rights implied that "'the fiiture of French

Canadians was to be secured not collectively through an autonomous provincial homeland but through participation as individual citizens in a Canada-wide community guaranteeing recognition of their language rights nom sea to ses.'"' Therefore, Trudeau's policy would have the effect of establishing the federal govemment, rather than the govemment of Quebec, as the guardian of the French language.

Trudeau ultirnateiy succeeded in the entrenchment of his language philosophy. The provisions of the OBciaL Languages Act were enshrined in sections 16 to 20 of the

Canadian Charter of Rights and Freedoms. In addition, the provisions of section 133 of the Constitution Act (1867), pertaining to the use of the French ami English language in

Parliament and the courts were reaffirmed. Minority education rights were also delineated in section 23 of the Charter.

The second component of Trudeau's constitutionai vision was the advancement of interregionai economic parity. According to Trudeau, the concept of economic sharing would enable al1 members of the national comrnuni~,regardless of "temtoria! Cr geographic context" to draw on the country's national prosperityP8 Ln addition, Trudeau argued that, "the poiitical cohesion of a society depends on its desire to secure the essentiai minimum for al1 its membes, regardless of their geographical ~ituation."~'The principle of fiscal equalization arnong the provinces would be achieved through the practice of fiscai federaiism, the transfer of wealth fkom the have to the have not provinces via fiscal equalization payments.

Manifestations of Trudeau's desire to advance interregional economic parity are readily apparent in two specific undertakuigs of his administration. In 1969, the

67 Russell, Constitutional Odyssev, p.79. 68 Trudeau, Mernoirs, p. 190. 69 Pierre Elliott Trudeau, "Federal Grants to Universities," Federalism and the French Canadians (Toronto: MacmilIan of Canada, 1968), p.8 1. Department of Regional Economic Expansion (DREE) was created, "'to supplement equaiization payments as a means of promoting economic development in the peripheral regions?" The second, and more con&oversial policy of the Trudeau government in pursuit of this objective was the enactment of the 1980 (NEP).

Glen Toner and Francois Bregha, note that 'he NEP was a centralist, nationalist and interventionkt political and policy initiative which at its core was intended to substantially restructure.. .the sectord and regional distribution of wealth in Canadian energy politics."" The NEP's massive transfer of wealth fkom western Canada to the centre fostered a sense of Westem dienation that contributed to the development of a

Westem constitutional vision focused on three principal objectives: increased decentrdization, the constitutional equality of the provinces and the creation of an elected, effective and equal (Triple-E) senate?

Trudeau's desire to entrench the practice of fiscal federaiism was based on the same nation-building premise associated with official bilingualism - "a conception of the country as a place in which al1 Canadians were working together to make it strong and

~nited."'~In addition to ensuring the sharing of the nation's wealth, the entrenchment of economic parity would also have the effect of making the institutions of the central government more responsive to regional needs, thereby, strengthening Canadians' identification with the nationai govemment. In 1982, Trudeau succeeded in the

'O Lusztig, "Constitutional Paralysis: Why Canadian Constitutional initiatives are Doomed to Fail," p.755. GIen Toner and Francois Bregha, "The Political Economy of Energy," Canadian Politics in the 1980s, eds. Michael S. Whittington and Glen Williams (Toronto: Methuen, l984), p. 105. " See Lusztig, "Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to FaiI." Trudeau, "The Values of a Just Society," Towmds A Just Society, p.360. constitutional estrenchment of interregional economic panty in section 36 of the

Constitution Act, 1982.

The final component of Trudeau's constitutional vision was the desire to entrench a

Canadian Charter of Rights and Freedoms. Trudeau regarded the negotiation of a charter

of nghts as a demonstration of Canada's national will. In a 1967 address to the Canadian

Bar Association on a constitutionai declaration of ights, Trudeau stated that,

essentialiy, we wil1 be testing - and, hopefully, establishing - the unity of Canada. If we reach agreement on the fundamental rights of the citizen, on their definition and protection in al1 parts of Canada, we shall have taken a major first step toward basic constitutional reform."

By pressing for the creation of a charter of nghts, Trudeau attempted to concurrently lay the foundation for the development of a unitary mode1 of citizenship and, set the agenda for a round of mega-constitutionai politics.

The entrenched charter envisioned by Trudeau was designed to achieve two specific political objectives. First, the Charter was to foster the development of a national cornmunity based on a body of constitutionally entrenched values and beliefs cornmon to dl, "in particdar on the notion of equdity among al1 anad dia os."'^ The establishment of a minimum base of rights for a national citizenry was designed as a means to counter the centnfbgal forces of duaiism and regiondism. Ln contrast to the statutory federal

Canadian Bill of Rights, a constitutionally entrenched charter would advance a set of national standards equally applicable to ail federal and provincial legislation. Thus, al1 litigation under the Charter would promote a centralist conception of Canada by

" Pierre Elliott Trudeau, "A Constitutional Dechration of Rights," Federalism and the French Canadians (Toronto: Macmillan, 1968), p.54-5. tramferring ''the power to arbitrate conflictuig rights fiom the provincial to the national comm~nity."'~Al1 provincial and federal legislation would be measured and ultimately shaped by the decisions of a national judicial body - the Supreme Court of Canada.

Therefore, the national application of the Charter's provisions would be reinforced by the national applicability of ail Charter decisions rendered by the Supreme Corn. Second, the Charter was designed to establish the primacy of the individual cver the state and al1 institutions of government. The granting of inalienable rights to the people would serve as "ubiquitous reminders that the base of the constitutional order is composed not of subjects, but of rights-bearing citizens on whose behalf the business of govemment is undertaken."" As a direct consequence, the Charter would serve "as an instrument to relocate sovereignty in the people, rather than in the govemments of Canadian federali~m."'~

Trudeau's vision of a renewed Codederation cuiminated in the Constitution Act,

1982. The patriation of the final 198 1 package included entrenchment of the Canadian

Charter of Rights and Freedorns. However, the inclusion of the Charter by the Trudeau

Liberals as a step toward basic constitutional reform proved to be an arduous task. The source of opposition to the Charter and the federal strategy to circurnvent resiçtance to the principle of a constitutionai charter of rights is a task reserved for the next chapter.

'' Pierre Elliott Trudeau, "The Values of a Just Society," Towards A Just Society: The Trudeau Years, eds. Thomas S. Axworthy and Pierre EIliott Trudeau (Toronto: Viking, 1990), p.363. 76 Lusztig, ''Con~tihitionalParalysis: Why Canadian Constitutional Initiatives Are Doorned To Fail," p.756. * AIan Cairns, Charter Versus Federalism: The Dilemmas of Constitutional Reform (Montreal and Kingston: Queen's University Press, 1992), p.76. 78 Cairns, "Reflections on the PoliticaI Purposes of the Charter: The First Decade," p. 168. CHAPTER TEIU3E: Tl3E ROAD TO 1982

The entrenchment of the Canadian Charter of Rights and Freedoms was the centrepiece of Trudeau's constitutional vision. From his 1967 introductory address on the merits of a Charter," to the 1982 partriation of the Constitution, "Trudeau never wavered in making a constitutionai bill of rights bis number one constitutionai pri~rïty.~~

As noted by Russell, ''the insistence on coupling a constitutional charter with patriation shows how strongly the Trudeau government believed in the nation-building potential of a constitutional ~harter."~'

CREATION OF THE CHARTER OF RIGHTS

Constitutional bargaining on the patriation of Canada's Constitution began in eamest during 1964. Prime Minister Lester B. Pearson and the provincial premiers unanimously agreed to patriate the British North Arnerica Act on the basis of an all-Canadian arnending formula. The arnending formula - dubbed Fulton-Favreau, dictated that, excluding amenciments regarding the federai division of powers and the use of the

English and French language that required unanhous approval, al1 Other constitutional amendments would be subject to the 7/50 rule - the consent of the federal Parliament and seven of the ten provincial legislatures representing at least 50 per cent of the Canadian population. In 1966, increasing public criticism prompted the province of Quebec to

- -

79 See Pierre Elliott Trudeau, "A Constitutional Declaration of Rights," Federalism and the French Canadians. 'O Russell, Constitutional Odyssey, p.78. '' f eter H. Russell, "The Political Purposes of the Canadian Charter of Rightç and Freedoms," Canadian Bar Review, LX(1983) 35. rescind its approval. According to Russell, the deal was scuttled due to the new political assertiveness of the province arising fiom the Quiet ~evolution." Russell explains that,

the nationalism of Quebec's provincial elites shifted fkom the nationdism of survivance to a nationalism of development and expansion. In constitutional tems, the priority was no longer to secure the powers acquired at Confederation but to increase Quebec's powers: the 'state of Quebec' shouid assume a comprehensive responsibiiity for the functions of the modem state, and the Québécois, to use the slogan of that day, should become 'maftreschez nous. '83

The defeat of the Fuiton-Favreau formula signaled the beginning of a bnef constitutional interlude. In the 1966 Quebec general election, Daniel Johnson and the

Union Nationale swept Jean Lesage and the Liberais fiom oEce. In accordance with

Quebec's developing neo-nationaiism, Johnson demanded that future constitutionai changes be premised on the two nations conception of Canada and in tems of égalité ou indepéndance." A year later, despite the objections of the Pearson government, Ontario

Premier John Robarts organized an interprovincial constitutionai conference entitled

Confederation of Tomorrow. The focus of the conference dealt with the now infamous question of Canadian constitutionai politics, "What does Quebec want?"e conference had the inevitable effect of forcing Ottawa back to the constitutional bargainhg table largely out of fear that the federal government was losing control of the constitutional agenda.

In 1968, Pearson initiated a series of federai-provincial constitutionai conferences.

Trudeau, in his officiai capacity as the federal was entmsted with preparing the federal position. At the kst conference, Trudeau reiterated that an

82 Russell, Constitutional Odyssey, p.73. *' -ibid. agreement on the fundamental nghts of the citizen was the first major step toward basic constitutional refoxm. As a resdt of this initiative by Trudeau, "the entrenchment of rights was firmly on the constitutional agenda."s5 A continuing constitutional dialogue ensued encompassing numerous meetings of first ministers and ministerial and continuing cornmittees.

In June 1971, the fïrst ministers convened for another conference on the constitution,

The conference culminated with the announcement of the Victoria Charter Constitutional

Accord. The Victoria Charter secured the entrenchment of a modest rights document protecting fkeedom of thought, conscience, religion, fieedom of opinion and expression, fkeedom of assernbly and association, in addition to enumerating democratic and language right~.'~In addition to a charter of rights, the accord embodied a new all-

Canadian amending formula. Under the Victoria formula, constitutional amendments would require the approval of the House of Commons, the legisiatures of any province having or that ever had 25 per cent of Canada's population, at Ieast two Atlantic provinces, and at least two westem provinces with 50 per cent of the western population.

However, the deal collapsed when Quebec announced its repudiation of the package due to jurisdictional concems over social policy. Specincally, the province was angered by federal encroachment on provincial fdy,youth and occupational training allowance~.~'

The collapse of the Victoria Charter quelled public and political interest in constitutional politics for the next few years. In 1976, the constitutional agenda

84 -Ibid., p.74-5. " , Howard Leeson and John Whyte, Canada. - .Notwithstandine: The Makine of the Constitution 1976-1982 (Toronto: CarswelVMethuen, 1984), p.228.

861bid-.y p.231. resurfaced with the election of the separatist Parti Québécois in the province of Quebec.

That same year, the feded govenunent established the Task Force on Canadian Unity

(Pepin-Robarts). On the issue of human rights, the task force explored the govement's option of adopting federai legislation that would establish a charter of rights applicable oniy at the federal level. In 1978, Trudeau in accordance with the options recommended by the Pepin-Robarts task force introduced the Constitutional Amendment Bill (Bill C-

60). The federal bill contained a schedule entitled - Rights and Freedorns Within the

Canadian Federation. Under the terms of Bill C-60, the constitutionalization of individual rights in a charter would be accomplished by simply labeling the legislation as a constitutional act? In cornparison to the Canadian Bi11 of Rights, the document would be applicable initially only at the federal level, but provisions would allow the provinces to commit individually to the tems of the rights section. Ideally, when enough provincial consent to the bill was obtained, entrenchment could be pursued through formal constitutional amend~nent.~~However, Trudeau's charter hopes were scuttled yet again when the legaiity of certain provisions of the bill regarding the Senate were deemed ro be beyond the competence of Parliament.gO

Ln 1978-79, Trudeau entered into another round of constitutional negotiations with the provinces. The negotiations resuited in the production of a best efforts draft of an entrenched charter of rights. However, most of the provinces had still not fully embraced the principle of an entrenched charter. The oncomiog expiration of the Liberals

Russell, Constitutional Odvssey, p.89-90. Rornanow, Leeson and White, Canada.. .Notwithstanding, p.235, -%id-, p-235- -%id. parliamentary term left too littie tirne to gain converts. In May 1979, the Progressive

Conservatives, under the leadership of displaced the Trudeau Liberals. Six

months later, Trudeau announced his resignation as Leader of the Liberaï Party of Canada.

In retrospect, Trudeau remarked, "but the fates had more in store for me."9'

"WELCOME TO THE 1980s"

On February 18, 1980, the Liberals retumed to power under Trudeau's leadership.

The fist major challenge facing the Trudeau Liberais was the Quebec referendum on

sovereignty-association scheduled by Lévesque's Parti Québécois for May 20, 1980. The

referendum gave positive effect to the Parti Québécois' 1976 election platform -

"independence must corne about in a democratic fashion, that is, with the consent of the p~pulation.'"~The wording of the referendum question was as foilows:

The govemment of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations: this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad - in other words, sovereignty - and at the sarne time to maintain with Canada an economic association including a common currency; no change wiil be effected without approval by the people through another referendum; on these terrns do you give the Govemment of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?

According to Trudeau, the referendum placed "Canada' s fate. .. at stake, and dong with it the fate of our g~vemment."~~At a federalist rdy during the referendum campaign,

Trudeau declared that "a 'No7 [to sovereignty-association] means change.. .Following a

No vote, we will immediately take action to renew the constitution and we will not stop

'' Pierre Elliott Trudeau, Memoirs (Toronto: McClelland and Stewart, 1993), p.258. René Levesque, Mernoirs (Toronto: McClelIand and Stewart, 1995), p.296. 93 Trudeau, Memoirs., p.273. until we have done tl~at."~~Once the referendum ballots were Ued, the 'No' forces had captured 59.6 per cent of the vote, and the 'Yes' 40.4 per cent. Immediately, upon the announcement of the federalist victory, Trudeau initiated efforts to renew the constitution with the dispatch of Justice Minister Jean Chretien on a whidwind tour of the provincial capitds to sel1 the federai constitutional package.

The first estersconvened in Ottawa on Jme 9, 1980 for private constitutional taiks.

At the meeting, Trudeau announced that the agenda on füture constitutional negotiations would be broken down into two packages. First, a "people's package" wodd deal with the matter of an entrenched charter of rights and patrïation. The second package, dubbed the "politicians,'" would deal with issues surrounding institutions and the division of powers. Negotiations continued at the ministenal level during the summer months in preparation for the First Ministers' Conference on the constitution slated for September 8 to 12, 1980.

UNILATERAL ACTION

During the course of the summer, federal and provincial positions on a charter polarized. The provincial governments tended to view the entrenched nature of the proposed document with suspicion. The principle of constitutional supremacy and the entrenched nature of the charter, would ensure that the judiciary had a prominent and deciding role to play in the application and interpretation of enumerated rights.

Consequently, all the provinces - except New Brunswick and Ontario, feared that the principle of parliamentary supremacy would be undermined and with it their provincial rights, powers and privileges to shape their territorial communities. The September 1980 First Ministers' Conference turned out to be a tumuItuous event.

Richard Hatfield, the Premier of New Bninswick and Premier William Davis of Ontario,

emerged as Trudeau's provincial dies in the quest to entrench a constitutional guarantee of nghts. The remainder of the provinces, styled as the "Gang of Eight," remained opposed to the principle of a charter. According to Trudeau, "the goal of the provinces was to obtain a greater devolution of constitutional powers, and their strategy consisted of refising to agree on repatriating the constitution as long as their hunger for power went un~atisfied."~~Towards this end, the Gang of Eight adopted a collective bargainhg stand and issued Trudeau a memorandum of their demands dubbed the Château Laurier consensus.% The document was based on a discussion draft prepared by the province of

Quebec. The intent of the Château Consensus was "to blunt any federal strategy based on a daim that the provinces codd not agree amongst themselves.'"' According to

Lévesque, "faced with a cornmon fiont of eight provinces out of ten, Trudeau didn't stand a chance.. .as Long as everyone stuck to his guns and respected hi5 signature."98 Trudeau dismissed the proposed agreement as a nothing more than a provincial "shopping li~t."~~

On Septernber 13, the evident failure of the First Ministers' Conference was confirmed.

Prime Minister Trudeau, in light of the federal-provincial impasse on the principle of a charter, announced on 2 October that the federd governrnent intended to proceed unilaterally with patriation and the enactment of a few constitutional changes embodied

-

95 Pierre Eliiott Tmdeau, "The Values of a Just Society," Towards A Just Society: The Tmdeau Years, eds. Thomas S. Axworthy and Pierre EIliott Trudeau (Toronto: Viking, 1990), p.376. % David Milne, The New Canadian Constitution (Toronto: James Lorimer and Company, 1982), p.73. 97 Romanow, Leeson and Whyte, Canada-..Notwithstandin.~p.97. René Lévesque, Memoùs, p.325. 99 Russell, Constitutional Odvssey, p. 1 1 1. in the "people's pa~kage."'~Specificdy, the intended changes included an ail-Canadian amenduig formula, a Charter of Rights, and a dechration of the p~cipleof fiscal eq~alization.'~'Recalling his announcement, Trudeau remarked, 'Tm convinced and 1 hope the people of Canada are convuiced, that there are some things you have to do decisively, without cooperative federalism. You've got to do it alone, otherwise it will never be done."lo2 The deadline set by Trudeau for actual patriation was July 1, 198 1.

PROVINCIAL OPPOSITION

The Gang of Eight openly opposed the federal unilateral strategy of constitutional renewal. Collectively, to discredit the federal initiative, the Gang of Eight devised a three-prong counter-offensive: legai action, a diplornatic strategy in Britain, and a domestic politicai campaign to sway public opinion.'03 The aim of the provincial strategy was to delay the federal initiative by placing significant obstacles in the path of the Iuiy 1 deadline. During the delay, the provinces hoped to foster and capitalize on public opposition to the federai plan.'@'

A mere twelve days after Trudeau's announcement of the patriation plan, the dissenting provinces announced legal action regarding the constitutional validity of the federal measure. Challenges were launched in three provincial appeal courts: Manitoba,

Newfoundland and Quebec. The reference question submitted by the provinces pertained to whether provincial consent was a requirement of constitutional practice for the

'" According to the terms of the resolution tabled in the House of Commons on 6 October, a unilaterat request was to be sent to Great Britain requesting the United Kingdom Parliament to amend the terms of the British North America Act, 1867. 'O' -ibid, 'O2 Tmdeau, Memoirs, p.27 1. 1 O3 See Miine, in The New Canadian Constitution, p.93- 1 O3 and Trudeau, Memoirs, p.3 1 1-3 14. 'Oj Milne, The New Canadian Constitution, p-94. submission of a request to the United Kingdom Parliament to alter the tems of the

Constitution. By April 198 1, the three courts had issued their reference decisions. The

Manitoba Court of Appeal ruied three to two in favour of the federal initiative. The

Quebec Court of Appeal concurred by a vote of four to one. However, Newfoundland's corn unanimousIy declared Ottawa's unilaterd resolution illegal. According to Milne, in

Light of the Newfouodand decision? "there could be no question of proceeding until the

Supreme Court had dedon the resoluti~n."~~~

On the 28 September, the Supreme Court of Canada rendered its decision. The questions ofprocess and substance were key legal aspects in the reference. The question of process, was raised by the federai unilateral approach. The question of substance, arose fiom the fact that the federal resolution embodied constitutional measures of "far reaching and unpredictable effe~ts."'~~A majority of the justices ruled seven to two that, as a matter of strict, black-letter law, provincial consent was not required and that unilateral patnation was legal. However, a majonty of six justices found that while unilaterai action was legal, it was not in accordance with constitutional convention.

According to the majonty, convention necessitated that a "substantial degree" of provincial consent was required to patriate the constitution. 'O7

During the course of legal references the governent of Quebec had spearheaded a diplornatic offensive in Britain. Under the terms of the Statute of Westminster (193 1), the British parliament had retained a tnisteeship of the Canadian constitution. Thus, while Canada enjoyed full legal autonomy as a self-governing dominion, constitutional

'O5 m.,p.99. 'O6 See Milne, The New Canadian Constitution, p. 104-7. amenciments still warranted the formal approval of the British Parliament.'08 As a

consequence, the dissenting provinces lobbied members of the British Parliament to

reficain from acting merely as rubber starnps to the federal government's constitutional

request. In November 1980, the United Kingdom's Select Committee on Foreign Mairs

(Kershaw Committee) was instmcted to examine the appropriate role of Westminster in

Canadian constitutional matters. The Select Committee concluded that the United

Kingdom Parliament shdl:

expect that a request for patriation by an enactment significantly affecting the federal structure of Canada should be conveyed to it with ar least thar degree of Provincial concurrence (expressed by governments, legislatures or referendum majorities) which would be required for a post-pu~iation amendment affecthg the federai structure in a similar way.log

Therefore, British approval of the unilateral request wouid not be automatic as the federal government had anticipated.

The domestic campaign employed by the Gang of Eight was the fimi strategy designed to scuttle the federd patnation plan. In an attempt to sway Canadian public opinion, the dissenting provinces launched advertising campaigns and the premiers on every occasion articulated reasons for opposing the federal package. However, the main device of the Gang of Eight was the development of an alternative patriation plan. The

Gang of Eight's agreement of April 16, 1981 called for patriation, the Alberta amending formula based on the 7/50 rule, and an amendment ophg out provision complete with hancial compensation. Details of a charter of rights were excluded. According to

'O7 Russell, Constitutional Odyssey, p. 1 18-9. 'O8 m.,p.56-7. 'O9 This quote is an extract from the report of the W Foreign Affairs Committee (Kershaw Report),cited in Canada.. .Notwithstanding, p. 144. Milne, the provincial plan ''demonstrated the premiers' retreat from their long-standing dernaads for a settlernent of the division of powers pnor to patriation. It tacitly signaled that bargainhg on a smaller package could pr~ceed.""~More importantly,

it sigoified that if bargainhg were to reopen, their chief interest would be their amending formula. Since satisfaction of that demand would require fkom them a concession of equai importance to the federal side (patriation having already been conceded) it provided a trade-off with the Charter of Rights."

T'Hl5 NATIONAL LEVEL

The Trudeau Liberals unilateral initiative was clearly in need of politicai support. The endorsement of the resolution by Ed Broadbent, leader of the , was welcoming news."' However, the federal MIP caucus was less receptive. The

Progressive Conservatives under the leadership of Joe Clark, also remained opposed the federal method of patriation.

By the early fa11 of 1980, the provincial aategy to discredit the federal initiative was developùig into a quagmire endangering any realization of the July 1 deadline. Each measure of the offensive devised by the Gang of Eight produced a favourable outcome.

The conflicting decisions issued by the three provincial coms of appeal decried that the reference case proceed to the Supreme Court. The judgment rendered by the Supreme

Court as perhaps the most damning cVcumstance that derailed the unilaterai effort.

However, the recornrnendation released by the UK Select Committee on Foreign Mairs

"O Milne, The New Canadian Constitution, p. 1O 1. m.,p.101-2. also questioned the issue of process thereby, elevating the function of Westminster in the patriation exercise. Domesticdy, the Gang of Eight, styling themselves as benevolent statesmen interested in fashioning a compromise agreement achieved great success in peneûating the psyche of Canadians. Thus, while Ontario and New Brunswick had remained steadfast allies during this period, no other elite political support had surfaced.

The critical convergence and implication of these events fostered an absence in overt political support at aii levels for the entire patriation scheme devised by Trudeau. Left without allies, the strategy appeared to be reduced to shambles. However, the dream was not dead.

THE SPECIAL JOINT COMMITTEE

The stance adopted by the Clark Conservatives as the official opposition, forced the government to support the establishment of a Joint Parliamentary Cornmittee. The

Special Joint Cornmittee ûf the Senate and House of Commons on the Constitution

(Hays-Joyal) convened in the late fa11 of 2980 and continued into the early winter of

1981. The committee consisted of ten senators and fifieen Members of Parliament.

Initially, the Liberals hoped the cornmittee's rwiew wodd proceed quickly, minirnizing any delay in the transmission of the unilateral resolution to the United Kingdom

Parliament.L13However, this was not to be the case. An ovenvheiming number of groups and individuais presented submissions requesting to appear before the committee.' l4

Interesthgly, the majority of submissions presented to the committee dedt with the

"'Broadbent's support was conditional on the basis that amendments would be made to the constitutional package afikning the provincial ownership of resources and the strengthening of provincial powers over resource management, ' " Romanow, Leeson and Whyte, Canada.. .Notwithstanding, p247. charter iss~e."~The process of building legitirnacy for the federal initiative was now moving in an uncharted direction.

The Special Joint Commîttee represented the fîrst oppomuiity for individuals and non- govermental organizations to directiy participate in the formation of the new

~onstitution."~In addition, the draft resolution under consideration by the committee contained the fust publicly available text of the proposed charter of rights. Civil liberties organizations and societai interest groups, namely feminist organizations, abonginal peoples, the multicultural community and, the mentdly and physicaily disabled were ciistraught by the fkgile protection afforded to the rïghts contained in the resolution.

Instantaneously, these groups and others began pressing the committee for a stronger charter, one that would protect the interests of their members.

Two theones account for the enthusiastic reception offered by interest groups towards the Special Joint Committee and the proposed charter. The first, pertains to the concept of status defined as "recognition in a hierarchy that lets those who hold it stake preferential claims on the political resources of the state or on the political process itself? According to Brodie, "groups or individuals will seek higher forms of status when a lower form of statu has been granted to too many ~thers.""~The entrenched nature of the charter offered societai groups the opportunity to gain constitutionai status.

Morton and Knopff note that constitutional statvs "gives a group officiai public status of the highest order, and groups who enjoy it have an advantage in pressing their claims

"'In total, the Special Joint Committee received over twelve-hundred submissions and Ietters. "* Romanow, Leeson and Whyte, Canada.,.Notwithstanding, p.247. '16 m.,p. 12 1. '" Ian Brodie, "The Market for Political Statu," p.253. against govemment over other groups who do n~t."''~Therefore, the cornmittee hearings and the charter represented a vehicle for the enbenchment (and loss) of statu. The second explanation relates to the operation of the "new politics" phenornenon. New

Politics theory advances "that patterns of political participation have changed substantially in recent years."'" According to New Politics theorists, patterns of political participation have evolved towards a "new participant ethic" marked by a "rise of unconventional and elite chaiienging political behaviour which is syrnptomatic of growing disenchantment with traditional and hierarchically organized representative instit~tions."'~~The Special Joint Committee and the charter presented an oppominity for the expression of this new participant ethic.ln

The intrinsic value of the Special Joint Committee as a lifeline to the ailing Trudeau patriation initiative cannot be underestimated. Even Trudeau, recognized the overall value of mass public support to the unilateral strategy. Trudeau ailudes to this fact in a section of his politicai memoirs pertaining to the patriation reference of the Supreme

Court.:

1 reacted to it [the legal decision] on two different levels. As a iawyer, a teacher of constitutional law, and a former miaister of justice, 1felt that if the court said what we were doing was legal, we should go ahead and do it. But as a politician, 1wondered whether the public would understand our decision, or whether they would think 1was being reckless. It might even seem that we were deQing the judgrnent of the court by simply proceeding with what a majority had said was contrary :O convention. Another question, of course,

Il8 m,,p.267- Il9 Rainer Knopff and F.L. Morton, Charter Politics (Toronto: NeIson, 1992), p.82. 120 Ian Brodie and NeiI Nevitte, "Evaluating the Citizens' Constitution Theory," Canadian Journal of Political Science XXVI:2 (June 1993) 239-40. "' -3ibid p.240. iUibid., 259; and Ian Brodie and Neil Nevitte, "Clarifj4ng Differences: A Rejoinder to Alan Cairns's ~efenceof the Citizens' Constitution Theory," Canadian Journal of Political Science, XXW2 (June 1993) 27 1-2. was how we would be received in London if we simply went ahead unilaterally aAer that judgment, which our enemies were publicizing far and wide in every political nook and cranny of Westminster. And, hally, 1knew that the two premiers who were with us, Davis and Hadield, weren't al1 that happy about the prospect of my going unilaterally at that point. They would have been forced either to corne dong reluctantly or to join the other provincial leaders in the Gang of Eight.Iu

Therefore, based upon these considerations, Trudeau sought to gamer the support of non- govemmental groups to provide a mord counterweight to the unilateral approach.

Reflecting upon the decision to return to the bargaining table, Tmdeau confessed, "1 didn't really hold out much hope that we would ever be able to sign a deai as long as the

Gang of Eight alliance held. Lévesque, 1 knew would never agree. But it was important for us to be seen making the eff01-t."'~~This limitation convinced Trudeau to devise a modified strategy. If the practice of executive federaiism failed to achieve a compromise accord, unilateralism would be revisited but this tirne the motion would be endorsed by the "massive demonstration of national will" via the operation of a national referendum - a tactic that would effectively circumvent the provincial governments. Trudeau steadfastly declared that, "if it came to a showdown, we would need to have the people demonstrate their support for the people's package."lS This is in effect what happened but in a different forum, that of the Special Joint Cornmittee. As Cairns notes, the coincidental opening up of the constitution "produced a symbiotic reciprocity of interest between the federal government looking for allies for its Charter project and the ernergent

- --

" Trudeau, Memoirs, p.3 Id. lZ4 --*fiid p.3 17. '3 -%id- minorifies avidly seeking the status and recognition that had been too long denied."'26

Thus, the Charter gave the federal govemment a crucial support base for its constitutional initiative. This had the effect of minimizing provincial concems with process and placing the Gang of Eight in a difncult position over opposition to an entrenched charter. The importance of the Charter to the unilateral initiative was eloquently described by Cainis, in that, "bereft of the Charter, unilateralism would have been reduced to a simple power play lacking in popular suppoa for the substance of the federal eff~rts."'~'He concludes that, "if the Charter kept the federd unilateral process dive, it is equally tme that the political salvation of the Charter was the political support deveiopeci on its behdf by that same unilateral pro ces^."^*^ However, this support came at a massive pnce.

In the Sp~gof 198 1, Trudeau accelerated the process of constitutionai inclusion by inviting non-governmental actors to participate in the constitutional bargainhg process, and by acceding to their demands. In effect, Trudeau was "deliberately fanning the

Bames, exhorting Canadians to reach for e~cellence."~" And, as Sheppard and Valpy observed, "the public was taking him at his word and demanding, through their representatives, a Say in the articulation of their common right~.""~

During the development of the compromise accord on the constitution that was forged in private deliberations between the federal govenunent and nine provinces, Trudeau attempted to jettison some of his societal allies. During the negotiations, the

Cairns, Reconfimu-ations, p. 124. "'Alan Caims, "The Politics of Constitutional Conservatism," And No One Cheered: Federalism, Democracy and the Constitution Act, eds. Kenneth Banting and Richard Simeon (Toronto: Methuen PubIications, l983), p.53. "* -Ibid. Robert Sheppard and Michael Vaipy. The National Deal: The Fight for a Canadian Constitution. (Toronto: FIeet, 1982), p. 140. govenunentai actors reach unanirnous agreement that section 33, the non-obstante clause

or notwithstanding clause, should apply to the guarantee of formal equality embodied in

section 28 of the proposed charter. Since section 15 was also subject to the operation of

section 33, the sexual equality provisions of the charter were effectively gutted.

Similarly, the constitutional rights of aboriginal peoples in section 34 (later renamed 35)

recognizing aboriginal treaty rights also came under scrutiny during the November deliberations. Since the scope and meaning of aboriginal rights were not fdly understood

by the federal or provincial participants, the decision was cast to revoke section 34.

However, the sense of bewilderment experience by both Canadian women and aboriginal peoples was short lived as each group simultaneously mounted a successful campaign to restore their constitutional guarantees and status.

The reinstatement of sections 28 and 3 5 are crucial insofar as it represents a virtual concession that these collectivist elements of the Charter and Constitution Act are inconsistent with the Trudeau vision. Apparently, Trudeau believed he codd toss these groups aside after he got the premiers on board. However, he could not do this. Instead, he stimulated strong incentives for groups who perceived themselves to be wronged - women and natives, to mobilize in an effort to enhance and protect their hard-won collective rights. In addition, he also created a strong incentive for other societal groups to rnimic the success of Canadian women and aboriginals. Conceivably, Trudeau believed that he could stuff the collectivist genie back into the bottle. However, he could not do this. As a consequence, instead of just the problem of Quebec separatism, we have al1 sorts of other groups who are collectively undermining the national fabric that Trudeau sought to weave, as they aim to entrench their own narrow constitutiona1

objectives into the ail but unreforrnable Constitution.

CAIRNS, THE CITIZENS' CONSTITUTION AND CHARTER CANADIANS

Alan Cairns has developed a comprehensive account of the new participant ethic."'

Accordhg to Caims, the opening up of the constitution to public scrutiny marked an

evolution in the role of citizens in constitutionai politics fiom political outsiders to

insiders. Cairns demonstrates this transformation through the identification of two types

of constitutions - governments' and citizens'. Pnor to 1982, Caims explains that the

constitution was a priority of govements. Consequently, the constitution dealt with

matters of federalisrn and parliamentary government, namely, the division of powers

between the two orders of govemment - federal and provincial, and the pattern of relationship between the executive and legisiative branches."' As constitutional outsiders, citizens performed no role in the intergovernmental negotiatiors on the constitution. Consequently, intergovernmental negotiations on the constitution and the

Charter between 1968 and 198 1 had been conducted in terms of elite accommodation

focusing on the proposed impact of a charter on the powers and rights of govemment.

Conversely, the constitutional politics conducted in the public arena of the Special Joint

Committee permitted citizens to act as participants or insiders. The inclusion of a rights document transformed the nature of the constitution fiom government-based to citizen-

based. As a direct consequence, the focus of the constitution was no longer construed on the two pillars of federalism and parliamentary govemment, but rather dong a citizen-

''' See Alan Cairns, Dismptions: Constitutional Struggles fiom the Charter to Meech Lake. state dimension based on a rights disco~rse.'~~Therefore, the focus surroundhg the proposed impact of a charter shified away fiom that of governments to the human rights contents of the package and its contribution to perceived public needs.'"

THE ALLIED DILEMMA

The transformation of citizens fiom political outsiders to insiders did not go unnoticed by Trudeau. He lamented that, 'ke had opened the door to the people to comment on it

[the Charter], and they had rushed through: 914 individuals and 294 groups.""'

However, what disturbed Trudeau the most about this participatory display was the degree of understanding exhibited by many societal interest groups concerning the constitutional entrenchment (and loss) of status. Evidence of this comprehensive understanding is succinctly apparent in the minutes of the Special Joint Cornmittee.

David Lepofslq of the Ontario Division Board of Management - Canadian National lnstitute for the Blind stated to the Joint Cornmittee that:

it has been suggested before this Committee that perhaps it would be best to simply Say equality before the law without discrimination, period, no reference to a list of protected classes.. .but in our view, it is not desirable for the following reasons. Firstly, it would mean that some thousands and thousands of dollars would be required going to court ...in order to get a precedent that decides whether handicapped is a class protected by the clause.. .And secondly, Mr. Chairman, the fact of the matter is, if we have to go to court and argue it, there is no guarantee that we will be included by the COUT~S.L36

''' Alan Cairns, Reconfimrations: Canadian Citizenship and Constitutional Change, ed, Douglas E, Williams (Toronto: McClelland and Stewart, 1995), p. 145. '33 -%id. '34 Milne, The New Canadian Constitution, p.87. 13' Trudeau, Memoirs, p.322. ''' Canada. Parliament. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Cornmons on the , 320d Parliament, 1980-8 1, p.25: 12. Ron Kanary, Vice-Chairmm of the Coalition of Provincial Organizations for the

Handicapped noted three kinds of advantages in amending the Charter to hclude the enurneration of handicapped persons:

Fustly, constitutional protection of the rights of disabled people would give high symbolic profile to the social concem to recognize and proteci these rights.. . Secondly, the inclusion of disability as a prohibited cause of discrimination, as it appiies to the substance of Iaw, will do much to change existing laws at municipal, provincial and federal levels which do discriminate against disabled people.. .The arnendments we are recommending .. . would also preclude any friture legislation.. .that would discriminate against disabled people.. . The third general advantage that the inclusion of disability or handicapped as a prohibited grouod of discrimination would produce, as applied to the administration of the law, is to reinforce human rights protection as an ordinary legislation level.. .We believe that Section 15(1) of the proposed Charter will then make it possible for the decisions of human rights commissions to be appeaied to higher courts on constitutional grounds. ..the listing of disability or handicapped in Section 15cl) then will be important to disabled Canadian as it will irnprove the protection aiready available at ordinary levels."'

On the permanence of entrenchment and the stability associated with such a measure,

Marlene Pierre-Aggamaway, President of the Native Women's Association of Canada, argued that, "the way it is now, nghts can be denied by Parliament, but if they are entrenched, they cannot be tampered ~ith."'~~Reaffimiing this claim, Wilson Head,

President of the National Black Coalition stated, "we would like to see the Human Rights prohibitions against discrimination put into the constitution so that neither the provincial Iegislatures nor the federal Parliament can take them away without going to a great deal of diffi~ulty."'~~

The willingness of the govemment to forge dies and the eagerness of societal groups to attain constitutional statw produced au environment of mutual back-scratching. The method whereby Trudeau managed to galvanize the political support of societal interest groups involved "singling out particular groups or categorïes for individuaiized treatment-"14* According to the Citizens' Constitution Theory advanced by Cairns, new groups were brought into the constitutional order through specific enumeration in the

Canadian Charter of Rights and Freedorns or closely related sections of the Constitution

Act, 1982. As a direct consequence, the Charter has ûiggered various specific

"constitutional discourses" - an ethnic discourse that responds to section 27 of the

Charter, a feminist focus around sections 15 and 28, an equality debate given constitutional stimulation by section 15 of the Charter, and an aboriginal discourse revolving around section 25 of the Charter and section 35 of the Constitution Act,

1982.'41 Members of these enurnerated groups are commonly known as 'Charter

Canadians.' According to Cairns, the transformation of Charter Canadians to constitutional insiders is articulated in group specific 'mini-histories ' that c hronicie

"landmarks in their evolution to constitutional recognition." 142 These mini-histones provide "the inteilectud infiastructure for the constitutional objectives of the new

'19 m.,p.22~8- Cairns, Reconfigurations, p.45. 14' Paraphrased fkom m.,p-262. 14' 14' -Ibid., p.127. constitutional players"'" and present a vehicle through which one can examine their new

constitutionai statu and the associated opening-up of the constitution.

WOMEN AND CONSTITUTIONAL STATUS

The poEtical history of Canadian women is a convoluted taie of tnumph and defeat.

The triumphs noted in the mini-history of women include their contribution to the war

effort during 19 14- 19 18 that gained them the extension of the federal fianchise in 192 1.

That same year, Agnes Macphail, became the first woman to be elected to the House of

Commons. However, the Supreme Court of Canada decided in the 1929 Edwards V.

Canada (Attorney General) persons case], that women did not qualify as "persons" and

could not be appointed to the Senate The reversa1 of this decision by the Judicial

Cornmittee of the Privy Council (JCPC), Canada's highest appellate court until 1947, was

a bitter victory. The continuhg experience of women with the Suprerne Court of Canada

proved Iess than favourable. The Court delivered two more infamous judgments that

discrimùiated against women. In Lavell (1973), a clear case of gender bias, Jeanette

Lavell, an aboriginal woman, challenged the provision of the Indian Act which deprived

abonginal women, but not aboriginal men, of their native status for marrying a non-

aboriginal under the ""equalitybefore the law" provision of the Canadian Bill of Rights.'"

The Court dedthat the equality before the law provision of the Bill of Rights pertained

to the administration of the law rather than equality in the law itself.14' In Bliss (1W8),

"discrimination in unemployment insurance benefits to women who were laid off because

--

'43 M.,p.26. Michael Mandel, The Charter of Ri-ehts and the Legalization of Politics in Canada, 2nded. (Toronto: Thompson Educational Pubiishing, I994), p.376. '" fiid., p.377. of pregnancy was held by a unanimous Suprerne Court of Canada not to discruninate on the basis of se^."'^^

The mrni-history of wornen marked by the decisions in Edwurdr, Lavell and Bliss are bitter landmarks in their evolution towards constitutional recognition. These past expenences with the Supreme Court of Canada influenced the initial reaction of women to the proposed charter. The entrenched nature of the document would have the effect of making the same court that had discruninated against them, the final arbiters of dl charter guarantees. Reflecting upon this apprehension, the National Action Committee on the

Status of Women (NAC) started its subrnission to the Special Joint Committee with the statement that, 'kornen codd be worse off if the proposed charter of rights and fieedoms is entrenched in Canada's constit~tion."'~' However, the process Ieading to entrenchment, and the actual entrenched Charter itself, has conferred upon women beneficial constitutional status.

Women were extremely successful at exploiting the process of constitution-making provided by the Speciai Joint Committee. As a direct consequence, wornen have eamed explicit niches in the Canadian Charter of Rights and Freedorn~."~ A distinct female constitutional discourse is provided by sections 15 and 28 of the Canadian Charter of

Rights and Freedoms. Section l5f 1) states that:

Every individual is equal before and under the Iaw and has the right to the equal protection and equai benefit of the law without discrimination and in

'46 -ibid. 14' 14' Canada Minutes of Proceedines and Evidence of the Sriecial Joint Committee, p.957. 14' 14' For a detailed account of feminist involvement in the Canadian constitution-making process of 1980- 198 1 see Penney Kome, The Taking of Twentv-Eight: Women Challenge the Constitution (Toronto: Women's Educational Press, 1983). particdar, without discrimination based on race, national colour, religion, sex, age or mentai or physical disability.

Subsection (2) of section 15 has the effect of exempting affirmative action prograrns fiom scrutiny under section 15(1). However, the provisions of section 15 are susceptible to section 1 and 33 of the Charter, Section 1 of the Charter, referred to as the limitations clause, guarantees the rights or fieedoms set out in the Charter subject to "such reasonable limits prescribed by Law as can be demonstrably justified in a fYee and democratic society." Therefore, the equality guarantees of section 15(1) are not absolute, but may be idhged. Section 33, the non-obstanre clause allows the federal and provincial legislatures to permit an Act of Parliament or the provincial legislature to operate notwithstanding certain provisions of the Charter.

In light of the limitations surrounding section 15, section 28 of the Charter was a significant victory for Canadian women. Section 28 decrees that, "notwithstanding anything in this Charter, the rights and fieedoms referred to in it are guaranteed equally to male and female persans." However, section 28 was initially subjected to the legislative ovemde embodied in section 33. The subjection of this clause to the ovemde provision effectively gutted al1 equality rights for women embodied in the Charter and represented a major setback in the feminist search for constitutional status. According to Kome,

"the guarantee of equality between men and women was no longer absolute. For the moment women had l~st."'~~However, the Ad Hoc Cornmittee of Canadian Women on the Constitution, a single-issue umbrella group that lead the women's constitutional lobby, launched a massive campaign to remove the ovenide fiom section 28. Ultimately,

the group was successfid in this pursuit.'"

Sections 15 and 28 of the Charter offer women the opportunity to employ litigation as

a strategy to seek politicai ends through judicial means. Knopff and Morton explain that,

"interest groups that fail to achieve their policy objectives through the traditional political

party and bureaucratie channels can now tum to the courts."Ls' The constitutional nature

of sections 15 and 28 provide a much stronger guarantee of equality rights than those

Borded by common law statutes or the Canadian Bill of Rights. This is due to the

suprernacy of the Constitution (section 52(1)) and the judicial enforcement of these

guaranteed rights and fieedoms (section 24(1)).

The niches occupied by women in the Canadian Constitution are the direct resuit of

the 1980- 198 2 constitutionai process. The impetus for the constitutional entrenchrnent of

equality rights provisions did not onginate within the women's rn~vernent.~'~Rather, the

federal government in search of allies for its charter of rights project invited women to

participate in the constitutional process. The acceptance of the invitation by women

signaled their transformation fiom political outsiders to insiders. Sections 15 and 28 of

the Charter, which stem fiom this transformation, gmnted women a distinct constitutional

discourse that in effect singles them out for special individualized treatment.

-

"O m.,p.83-95. '*' Knopff and Morton, Charter Politics, p.26. IS2 See, Mary Eberts, "A Strategy for EquaIity Litigation Under the Canadian Charter of Rights and Freedoms," Litkahg the Values of a Nation: The Canadian Charter of Rights and Freedoms, eds. Joseph M- Weiler and Robin M. Elliot (Vancouver: Carswell, 19861, p.412 and Chavia Hosek, "Women and the Constitutional Process," And No One Cheered: Federalism. Democracy and the Constitution Act, eds- Keith Banting and Richard Simeon (Toronto: Metheun, 1983), P.283, EQUALITY-SEEKERS AND THE CHARTER

Members of marginal societai groups have faced an arduous battle in achieving public policy outputs that enhance their status. The disregard of their situation by niling govemments, numerous losses in the legislative arena and, govemmental inaction characterize their mini-histories. The ranks of the margindized include women, multi- racial minorities and, the mentally and physically disabled. Engaged in the pursuit of equality, members of these groups have been appropriately termed "equaiity-seekers."

The draft resolution presented to the Specid Joint Cornmittee on the Constitution contained, as previously noted, the first publicly available draft of the charter. Section

15, the equality rights provision of the proposed charter delineated specific prohibited grounds of discrimination. The entrenched nature of the charter made section 15 a major provision through which equality-seekers could attain recognition as political actors within the Canadian state. In addition, the constitutional status of the charter, in contrast to ordinary legislative enactments, would make the future loss of any gains highly dikely. According to Russell, section 15 was seen by the federal government as a means of "CO-opting highly visible and vocal interests" into supporting their unilaterd package.L53 The federal searcb for allies to grant legitimacy to their constitutional package had the effect of transforming equality-seekers into political insiders during the hearings of the Special Joint Cornmittee. The success of the equaiity-seekers was largely dependent upon group affiliation. Women, multi-racial Canadians, and the mentally and physically disabled were extremely successful by gaining inclusion in the Charter through

lS3 Peter H. Russell, "The Effect of a Charter of Rights on the Policy-Making Role of Canadian Courts," Canadian PubIic Administration, 25 (1982) 26. the prohibited grounds of discrimination: race, national or ethnic origin, colour, sex, age or mental or physical disability. The prohibited grounds of discrimination enumerated in section 15 triggered various specific constitutional discourses driven and kept alive by the equality seekers.'" However, section 15 also discrimuiated against particular collectivities - notably homosexuals, in search of recognition. As a consequence, these groups lack explicit constitutional niches and, therefore, constitutional status. The

Canadian homosexual community, unlike women, ethno-cultural Canadians and the mentdy and physically disabled, cannot look upon the Charter as a "supplement to parliamentary and political institutions" in their search for redress.'*'

ABOEUGINALS AND THE CHARTER

Canada's aboriginal people share a common pst chronicling "separate treatrnent on segregated reserves as a stigmatized people."'s6 Status Indians already possessed constitutional status pnor to the constitutional negotiations of 198 0- 198 1. Cairns explains that, "in the original BNA Act, 'lndians, and Lands reserved for the Indians'

(section 91(24)) was the constitutional buis for the construction of a people - 'status

1ndians.'"ln As a consequence of their constitutional identity, status Indians felt that they were granted an "entitlement to distinctive treatrnent."L58 The federal White Paper on

Indian Policy (1969) recommended the abolition of the ManAct and the assimilation of

status natives hto the mainstream Canadian society - an act which constituted a direct

--

lS4 Cairns, Reconfigurations, p.262. Is5 Jeffery Simpson, "Rights Tak- The Effect of the Charter on Canadian Political Discourse," Protecting Ri&ts and Freedoms: Essays on the Charter's Place in Canada's Political, Lenal, and Lntellectuai Life, eds. Phiilip Bryden, Steven Davis and John Russell (Toronto: University of Toronto Press, 1994), p.56. Cairns, Reconfigurations, p. 1 1 7. 15' 15' -ibid., p.126. lS8 -Ibid, threat to their constitutional acknowledgment. Status Indians mobilized to preserve their constitutional status. This upsurge in aboriginal nationalkm forced the federal govemment to abandon the 1969 policy. This landmark in the mini-history of status aboriginals was a significant event for al1 aboriginal groups. Status Indians, by presening their constitutional status, allowed the and Métis to continue efforts to attain the same level of official state recognition.

Aboriginals were invited to the constitutional table as observers during the intergovemmentai constitutional negotiations of 1978- 1979.Is9 In August 1978, the

National Indian Brotherhood (NB) presented two basic constitutional demands to the federal and provincial govemments. "First, a new constitution must entrench aboriginal and treaty rights; and second, the Indians must themselves be involved in the process of constitutional ref~rm."'~*However, natives were not invited as full participants despite the fact that specific items on the constitutional agenda dealt with "Canada's native peoples and the ~onstitution."'~~

During the constitutional process of 1980-1981 "the Joint Cornmittee became a central vehicle for building a broader federal consensus, and aboriginal rights became a bargalliùig issue within that forum."'62 During this forum, the federal govemment offered natives positive entrenchment of abonginai and treaty rights in exchange for their support of the unilateral patriation plan. The Liberal strategy succeeded as "native

lS9 Invitations were extended to al1 three national aboriginal organizations: National indian Brotherhood (status Indians), the Native Council of Canada (Métis and non-status indians) aud the Inuit Conunittee on National Issues. '" Douglas E. Sanders, "The tndian Lobby," No One Cheered: Federalism. Democracv and the Constitution Act, eds. Keith Banting and Richard Shneon (Toronto: Metheun, I983), p.304. 16' m.,p.304-5- 16* -ibid., p.3 14-3 15. leaders announced they would join Prime Minister Trudeau in demanding that the British

Parliament approve patriati~n."'~~

Section 25 of the Canadian Charter of Rights and Freedoms and section 35(1) of the

Constitution Act, stem fiom the Liberal's search for ailies in 1980-1981. Section 25, guarantees that the rights and fieedoms of the Charter will not "abrogate or derogate fiom any aboriginal, treaty or other rights or fieedoms that pertah to the aboriginal peoples of

Canada." Section 35(1) states that, "the existing aboriginal and treaty rights of the abonginai peoples of Canada are hereby recognized and reafnrmed." The combined effect of these clauses is the granting of a constitutional niche to native peoples upon which they can build their own constitutional discourse. The extension of constitutional status enjoyed by status indians is now equaily applicable to the Inuit and Métis peoples of Canada through the definition of aboriginal people employed in section 35(2) of the

Constitution Act.

MULTICULTURAL CANADIANS AND THE CHARTER

Lacking the status of a founding people reserved excIusively for the British and

French (and recently aboriginals), rnulticultural Canadians - Canadians whose heritage is non-English and/or non-French, have been likened to the operation of a "third-force."

Despite their differing cultural heritage, each cultural group's rnini-history is constnicted on unique accounts of how they settled in Canada and embarked upon becoming

Canadians. In addition, the 1971 federal policy of multiculturalisrn is explicitly acknowledged by these groups for afnmiing and promoting the of Canada. Organizations representing the multicultural community appeared before the Special

Joint Committee in 1980- 198 1. During subrn.issions to the cornmittee, ethnic associations made pleas for the extension of constitutionai protection to include culture and customs.

The desire expressed by these groups to strengthen the provisions of the proposed Charter coincided wÏth federal aspirations. Due to the utility of multicultural Canadians as charter ailies, the federal government supervised their transformation into political insiders. The participation of third-force Canadians in the proceedings of the Special

Joint Committee served to legitimate federai unilaterd constitutional efforts in the face of substantiai provincial opposition.

The participation of multicdtuml Canadians in the constitutional proceedings of 1980-

1981 and section 27 of the Canadian Charter or Rights and Freedoms form the focal points of a Canadian polyethnic constitutional discourse. Section 27, the constitutional niche of multicultural Canadians States that: 'This Charter shall be interpreted in a rnanner consistent with the preservation and enhancement of the multicultural hentage of

Canadians." The constitutional guarantee offered by section 27 has the effect of strengthening the intent of the 197 1 policy on multiculhiralism by transforming it into an aspect of Canadian constitutional law. Cairns makes an important observation in the application of section 27 between third-force Canadians of a multicultural rather than a rnultiraciai background:

an emerging distinction that will grow even more important in the light of anticipated dernographic change is between visible minorities and the older, more traditional European groups outside of the French-English duality. Section 27, with its reference to the preservation and enhancement of the multicultural heritage of Canadians, is of more signifïcance to the latter, while the former, especially those of lower status, see Canada through a muitiraciai rather than a multicultural lem. For hem, Section 15 is of more signincance and their goals are less those of cultural protection than of equal treatment or positive di~crimination.'~~

THE NOVEMBER ACCORD

The September 1981 Supreme Court of Canada judgment in the Patriation Reference effectively scuttled the federal unilateral initiative. In an attempt to secure a "substantial degree" of provincial consent, Trudeau scheduled a First Ministers' Conference on the constitution. The conference opened on the 2 November with Premier Sterling Lyon of

Manitoba urging Trudeau to sign the Gang of Eight's April 1981 patriation agreement.

Trudeau declined and informed the premiers that while the federai government couid be flexible on the timing and substance of a charter, it refused to yield on the principle of the charter itself? Reflecting on the proceedings of the Special Joint Cornmittee, Trudeau remarked that, "a national constituency had been created in favour of the charter, and that was as it should be."166 At this juncture in the contest of constitutional bargaining, the repudiation of the charter by Trudeau, its main advocate, would have been to betray and undermine the charter's most vocal support base.

The initial constitutional bargainhg at the conference had produced very Little. On the

4 November, Lévesque announced he was departhg the conference at noon. Thus, time was growing short on striking a deal. Acting upon this threat and in an effort to break the deadlock, Trudeau proposed a pian to Lévesque involving the irnmediate patriation of the constitution with two Meryears allotted for additional negotiations on an arnending formula and a charter of nghts. If within that period the federal govemment and

'64 Cairns, Disruptions, p. 174. Trudeau, Memoirs, p.3 17-8. provinces could not reach a mutual agreement, the Canadian people would decide on both issues in a referendum. Trudeau claims to have summed-up his offer with the shrewd query that, "surely a great democmt like yourself won't be against a referend~m?"'~'

According to his personal recollection of the incident, Trudeau claims that, "Lévesque rose to the bait."'68 He continues that, "I think he answered instinctively, widiout rememberîng that he was in the Gang of Eight, and said: 'Well 1 can buy tl~at.'"'~~Thus,

Lévesque had broken the solidarity of the Gang of Eight. The remaining seven premiers in the Gang of Eight were incensed at Lévesque and rejected the idea of a referendum.

During the aftemoon of November 4, federal justice minister Jean Chretien and Roy

Romanow and Roy McMurtry, the attorneys general of Saskatchewan and Ontario respectively, began working on a compromise constitutional accord. The Chretien-

Romanow-McMurtry manoeuvre continued late into the night until fmally a deal was stmck. Al1 of the premiers except Lévesque had been bnefed on the compromise before the premiers' breakEast the next moming. On the 5 November, der "the night of long knives," Lévesque felt betrayed and refused to sign the constitutionai accord agreed to by the remaining provinces and the federal govemme~t.'~~The Constitution Act and the

Canadian Charter of Rights and Freedoms were proclaimed on April 17, 1982.

The entrenchment of the Canadian Charter of Rights and Freedoms represented a signincant triumph for Pierre Elliott Trudeau. The Charter, a product of mega- constitutional politics and the plinciple component in Trudeau's constitutional vision, provided a refiection of the identity and fiindamentai principles of the Canadian body poiitic. However, there were certain unforeseen consequences inherent in the ha1 version of the Canadian Charter of Rights and Freedoms that have resulted in widening rather than stemming the social divide between Canadians.

'" For an in-depth account of 'the night of long hiver' see Robert Sheppard and Michael VaIpy, National Deal: The Finht for a Canadian Constitution (Toronto: Fleet, 1982), chapter 13. - CHAPTER FOUR: CONSTITUTIONAL FRAGMENTATION

In theory, the Canadian Charter of Rights and Freedoms represented the culmination of a political endeavour whose purpose was to strengthen Canadian uni@ through the pursuit of a Just Society. However, the practice of symbolic engineering employed by

Trudeau at the constitutional level during 1980-1982 has failed in this respect. Instead of a symmetrical rights discourse based on the unitary model of citizenship, the Charter has produced a fiagmented and asymmeaic sense of citizenship that serves to undermine the

Trudeau constitutional vision. Moreover, there were also certain uoforeseen consequences inherent in the Charter that have contributed to the development of a competing and antithetical CO nstitutional orientation to the Trudeavian vision.

STATUS AND THE UNITARY MODEL OF CITIZENSHIP

The centrality of a common set of individual nghts to the operation of a unitary model of citizenship accounts for Trudeau's relentless pursuit of the Canadian Charter of Rights and Freedoms. As previously noted, the unitary model of citizenship is designed to promote a paramount sense of membership in the national political community versus any allegiance to one of the subdivisions of the national society. The failure of the

Charter in developing this paramount sense of loyalty to the national comrnunity partiaily resides in the fact that certain rights and fkeedoms contained within the actual document violate the base requirernent of the unitary model.

The Charter boasts numerous sections that adhere to the symmetrical rights requirement of the unitary model. In fact, the majority of Charter clauses are consigned to a discourse of symmetrical individual rights: "everyone" (sections 2, 7, 8, 9, 10, 12, 17), "every citizen7' (sections 3, 6), "any person" (sections 1 1, 19), "a witness" (section

13), "a party or witness" (section 14), "any member of the public" (section 20) and

"anyone" (section 24). However, the Charter also simultaneously embraces an asymme~calrights discourse that serves to grant political salience to certain societai groups via sections 15,25,27 and 28.

As previously noted, section 15 appeals directly to particular groups or categones of individuals who are identi6ed by the characteristics of race, national or ethnic origin, colour, religion, sex, age or mentai or physical disability. The application of section 25 is restricted exclusively to the abonginal peoples of Canada - statu Indians, the huit and

Métis. Section 27 applies strictly to Canadians whose heritage is non-EngIish andor non-French. The guarantee of sexual equality embodied in section 28 is of a disproportïonate significance to women. Section 23 can also be added to this listing of asymmetrical provisions. Section 23 delineates the minority education language rights guaranteed to citizens of Canada. However, the application of this section is not universally construed to al1 linguistic minorities, but purely to that of the "English or

French linguistic minority ."

The collectivist nature of sections 15,23,25, 27 and 28 are problematic for the simple fact that by allocating asymmetrïc rights, these clauses constitute discrunulating constitutional niches that single out particular groups for individualized treatment . The negative implications of the asymmetric rights discourse of the Charter manifests itself in two ways to negate the operation of the unitary model. First, as alluded to above, the provisions of the Charter represent an embodiment of individual and collective rights. As a consequence, Canadians are the bearers of both individual and collective rights (the latter dependent upon societal group aftiiiation). Inevitably, these two foms of rights wil1 corne into conflict with one another. Second, the formal requisition - the official laying of claim to the guarantee of the rights and freedoms enshrïned in sections 15, 23,

25, 27, and 28 of the Charter, are a prîvilege restricted to the enumerated or to those who secure section 15 status as discrete and insdar minorities, As such, rather than emphasizing a set of values common to di, the Charter grants a heightened focus to an asymmetncal sense of citizenship. Thus, by according recognition and stimulation to the particularistic self-consciousness of Canadians, the asymmetricaf rights discourse of the

Charter serves to accentuate conflict and the lines of social cleavage between Canadians.

The asymnc,'ricd rights discourse of the Charter also had the effect of forging Charter

Canadians. Due to the legal nature of the Charter, Charter Canadians are placed in a position of political privilege. In so far as the Charter is a legal document and, therefore, judicially enforced, any political condtuency that cm demonstrate that their înterests are encompassed by the Charter are able to seek the protection and extension of their existing rights and privileges through Charter-claiming litigation in the courts."' This enurneration of particuiar constituencies in the Charter has prompted the developrnent of a social divide or as styled by Caims, a "constitutional fragmentation," between Charter and non-Charter Canadians. As a consequence, these two groups are now squared off against one another, with one classification seeking to protect their status and the other

''' The basis for Charter-clairning litigation is found in section 24(1) - "Anyone whose rights or freedoms, as guaranteed by this Charter, have been in£kingedor denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the cucurnstances." striving to obtain recognitiodn This strife is in addition to the potential for conflict arnong Charter Canadians themselves.

In so far as the coilectivist language of sections 15, 23, 25, 27 and 28 operate to undermine the Trudeau vision, it must be reiterated that most of these collectivist provisions were necessary evils designed to curry favour with allies in the battle against the Gang of Eight. However, beyond the presence of coilectivist language, there were some unforeseen consequences in the Charter that conspired to undermine the Trudeau vision in a way that Trudeau himself could not (or did not) predict in 1980-1982. Of these, section 15 is the most interesting.

Section 15(1) - the equal rights provision, reads as follows:

Every individual is equal before and under the law and has the right to the equd protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

What makes section 15 interesting, is the fact that the language is individualistic - "every individual is equal before and under the lmand hus the right to the equal protection and equal beneft of the lmwithout discrimination," but the thnist is collectivist - "and, in particular, without discrimination based on race. national or ethnic origin. colour, religion, sex. age or mental or physical disability." What accounts for the operation of this dynamic is the Rousseauian quest to engineer the perfect society mounted by

Trudeau. The problem in fashioning a Just Society can be explained as follows in

Roussean terms: "to devise a form of association which will defend and protect the person and possessions of each associate with ail the collective strength, and in which

- - ln See [an Brodie, "The Market for Political Status," Comparative Politics, 28:3 (Apri! 1996). each is united with dl, yet obeys only himseif and remains as fiee as bef~re.""~ The solution to this dilemma is the creation of a social pact. Rousseau notes that, the formation of a social pact is a contractual undertaking, the terms of which require ''the complete surrender of each associate, with ail his rights, to the whole comm~ty.. .since each man gives himseif entirely, the condition is equal for ail."'" Rousseau continues that, "the act of association immediately creates a collective, artificial body, composed of as many rnembers as the assembly has voters, and the same act [also] gives this body its unity, its collective self, its life and its will. Such a public person, formed by the union of al1 other persans.. .is known as a republic or a body politi~.""~The social pact forged by the association of individuals fosters the formation of a general will. As Rousseau notes,

"there is ofien a great difference between the will of ail and the general will. The latter looks only to the common interest, while the former looks to private interest and is only a sum of individual ~ills."'~~This dichotomy of wills, was the very dynarnic that Trudeau was attempting to address with the entrenchment of the Charter. The collectivist thrust of section 15(1) was part of an effort to aid in the construction of a general will.

Specifically, it seems that by including the second-half of section 15(1), Trudeau was trying to capture the Rousseauian general will by seeking to militate against al1 the lines of social cleavage (at least as he saw them).

As noted in chapter two, there is no doubt that Trudeau prescribed to the operation of a general will. In a personal reflection on the generai will in 1980, Trudeau remarked

ln Jean Jacques Rousseau, "The Social Contrac&"The Essential Rousseau, tram. Lowell Bair (Marldiarn: First Meridian Printing, 1%3), p. 17. "4 m. m.,p.17-18. that, "if there was not the will in the country to be constitutionally independent 1 15 years

&er Canada stopped being a colony, that would have meant there was no national will at dl, and therefore no county worthy of the name."'" To ensure the viability of a federal

Canada, Trudeau insisted that the centrifiigal forces of dualism and regionalism needed to be minimized by sîgnincant constitutional change. As Rousseau notes:

the body politic, like a man's body, begins dying as soon as it is bom, and bears the causes of its destruction within itself. But either kind of body can have a stronger or weaker constitution which will tend to preserve it a longer or shorter the. A man's constitution is produced by nature, a state's by art. Men cannot prolong their own lives, but they can prolong the lîfe of the state as far as possible by giving it the best constitution it can have."'

It was this exact desire to prolong the Me of the nation-state that convinced Tmdeau to ernbrace a program of mega-constitutional reform. Therefore, the second-half of section

15(1) was designed to mitigate the collectivist concessions in the Charter by sowing the seeds of cooperation. However, Rousseau, in his treatise on the social compact, warned that %e best constituted state will evenhially corne to an end, but it will last longer than others if some unforeseen accident does not destroy it prernat~rel~."'~~This is the very dynamic that Trudeau rnissed.

Instead of sowing the seeds of cooperation, the Charter - especially section 15(1), does the opposite. Sections 15, 23, 25, 27 and 28 of the Charter afTord recognition and stimulation to the paaicularistic self-consciousness of Canadians through an asymmetrical rights discourse. However, section l5(l) accentuates this development.

------.- 17' 17' -bid., p.27- '" Trudeau, Memoirs., p-306-3 07. 17' 17' Rousseau, "The Social Contract," p.74. '79 -ibid, Specifïcaify, the second-haif of section 15(1) permits the construction of new lines of

social cleavage that heretofore had not found fertile soi1 in which to take root. Lusaig

notes that, "in generk terms, the equal nghts provision (section 15) promises similar

[constitutionai] status to other discrete and uisular minorities that are able to mobiiïze and secure a judicially mandated issue space under the Charter."'80 Thus, non-Charter

Canadians or each "potentially protected group" has two options: "it cm try to get protected status nom judges, or it can opt not to participate in status seeking politics.""'

If discrete and insular rninorities decide to engage in status-seeking politics, this act shall constitute a threat to the status of existing Charter Canadians. Brodie clarifies that,

"status as a protected group is vaiuable only if the family of protected groups is an elite among groups. Once too many groups attain section 15 statu';, it becomes worthless."'"?

Simply stated, "as more groups or individuals gain a certain form of statu, the value of gaining [or possessïng] it begins to ~iro~."'~~Therefore, Charter Canadians have a vested interest in preventing the judicial dissemination of their source of status. Brodie notes that, "as the value of each rnember's share of a certain form of statu drops, but before the net benefit of seeking that status disappears aitogether, the members may begin to oppose the extension of status to new potentiai members in order to protect the value of their status."'" Furthemore, as section 15 status is conferred upon a broader base of

Canadians, Charter Canadians themselves may become active participants in status

''O Lusztig, "Constihitional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail," p.760. ''' Brodie, "The Market for Political Status," p.259. lE2 S.,p.263. lg3 -fiid, m. seeking politics by attempting to obtain even higher fonns of tat tus."^ In effect, Charter

Canadians will attempt to "tnimpY7their original level of constitutional status. Section 28 provides an illustration of this "higher forrn of 'trumping' constitutional tat tus."'^^ The equality rights of women are not only afforded section 15 status in the Constitution, but are supplemented by the operation of section 28. Therefore, one cm conclude as Brodie notes, that since 1982 "group cornpetition for status [recognition in a hierarchy that lets those who hold it stake preferential claims on the political resources of the state or on the political process itselfl is now a central feahue, perhaps the central feature, of Canadian constitutional politics." Is7

THE POLITiCS OF CONSTITUTIONAL MODIFICATION POST- 1982

ManGedi and Lusztig defme the politics of constitutional modification as "a competitive game of institutional design in which the objective is to alter the range of possible policy outcomes by rnodïfjring procedural or substantive ni le^."'^^ Within this competitive process, the actual procedure of constitutional modification serves as the

"instrument for changing the dynamics of political power and altering the status of competing inter est^."'^^ In the pre-1982 constitutional era, the politics of constitutional modification dealt merely with procedural changes to the existing institutions established by the tenns of the British North America Act. Such constitutional modification of the basic institutional fiamework exemplified the exercise of low-level constitutional politics and the non-inclusive nature of constitutional documents. In contrast, the politics of constitutional modification in the post-1982 era are no longer reflective of the non- inclusive nature. m addition to aitering the nurnber of legitunate players in the constitutional bargaining game to include the extra-govemmental groups enurnerated in sections 15, 23, 25, 27 and 28, the entrenchment of the Charter has also served to raise the contest to a consistent level of rnega-constitutionai proportions. Therefore, the current politics of constitutionai modification are an exercise in comprehensive reform that "includes constitutional changes aimed at rnodifying the status of, and relationship among, social groups [Charter versus non-Charter Canadians] ador governmentai actor~."'~~The actual modification in status and relationships is derived fiom the fact that

"comprehensive reforrns are redistnbutive insofar as they are purposefully designed to skew resource distribution and policy outcomes in favour of one or more social (or state- level) actors at the expense of others."19' Simply stated, the Canadian Charter of Rights and Freedoms (and to a lesser extent the Constitution Act, 1982) now serve as a vehicle for the entrenchment (and loss) of status.

TKE CHARTER AND MINORITARIANISM

The asymrnetncal nghts discourse of the Charter (granted effect through the medium of constitutional status), has produced a fragmented and asymmetric sense of citizenship through the condition of constitutional minoritarianism - the constitutionai recognition and stimulation of non-territorial colle~tivities.'~~The condition of constitutionai minoritarianism that stemmed from the complex political process associated with the

"'Christopher P. Manfiedi and Michael Lusaig, "Why Do Formal Constitutional Amenciments Fail?: institutional Design and the Capacity for Constitutional Modification," World Politics, 1997 forthcoming. '" -Ibid. ''O -Ibid. entrenchrnent of the Charter has resulted in the evolution of a minoritarian constitutional orientation. Lusztig notes that the minoritarian orientation '5s not so much a coherent constitutional philosophy as an aggregation of potentid interests, each seeking to enhance its own legitimacy and power base."193 The minoritarian orientation is problematic due to the fact that it is inherently irreconcilable in that, "the logic that compels it also dictates that constitutionai recognition must either be arbitrarily restncted or, dtùnately (by vimie of endless group subdiIision), almost universdy be~towed.""~ In simple terms, the irreconcilable differences of the minoritarian orientation are mdested in itseif in two ways: being infinitely inclusive and not intemdy ~Liscrete.~~~

lMinoritarianism is infinitely inclusive because "once one group attains constitutional status, other groups emerge to press equaiiy valid claims for enhanced constitutional re~ognition."'~~Section 15 permits any societal group that can define itself as a discrete and insular minority to adopt a strategy of litigation in the hope of securing a judicially mandated space in the prohibited grounds of discrimination - the second-half of section

15(1). Homosexuds are perhaps the best example of such a societal group that have achieved limited section 15 status through the courts. Two legd cases are illustrative of this claim. In Knodel v. British Columbia (Medical Services Commission) (I991), the court interpreted the terms of the Medical Senrices Act defining "spouse" as limited to heterosexual couples a violation of section 15. In Haig v. Canada (1992), the bench ruied that the absence of sexual orientation fiom the prescribed list of prohibited grounds of

19' -Ibid. See Alan Cairns, "Constitutional Minoritarianism in Canada," Reconf?.giirations. 19' 19' Lusztig, 'LConstitutionalParalysis: Why Canadian Constitutional Initiatives Are Doomed to Fail," p.752. l" m.,p.760. discrimination in the Canadian Human Rights Act constituted ao infiingement of the section 15 guarantee.

Mïnoritarianisrn is not intedly discrete because "the logic of pluralism dictates that cleavages wiU cros~cut."'~~Therefore, Charter Canadians may be members of more than one minontarian orientation. Each category within the Charter Canadian classification - women, abonginals and multiracial andor muiticuitural Canadians, is comprised of smaller coalitions or subgroups. Such coalitions are naturally bound to subdivide "unless certain cleavages are assigned primacy over constitutional stat~~s."~~~Lusztig explains that :

if two ascriptive characteristics (X and Y) achieve constitutional stahis, those individuals who possess both characteristics will Iogically have c1ai.m to even more constitutional status than those who possess only characteristic X or characteristic Y. An incentive naturally arises, therefore, to form a new group consisting of kdividuals who possess both charactensti~s.'~~

An illustrative example of this claim is the quest for constitutional recognition advanced by the Native Women's Association of Canada (NWAC).~~The four male-dominated national aboriginal organimtions - the Assembly of Fkst Nations, the Native Council of

Canada, the Inuit Tapinsat and the Métis National Council, were invited to participate in the multilateral negotiations that produced the 1992 Charlottetown Accord on constitutionai reform. A major part of the Accord deait with the constitutionalizing of

First Nations self-government. One of the proposds of the Accord recommended that

Ig5 See m. '% -%id. 19' 19' -ibid. lg8 -Ibid. self-governments be permitted to enact legislation nothwithstanding certain provisions of the Charter. The NWAC was concerned with the possible threat this provision posed to the guarantees of sections 15 and 28 of the Charter since the cultural specficity of certain abonginal orgaaizations did not recognize the individual equality rights of fernales. in an attempt to secure a seat at the bargainhg table, the NWAC initiated litigation against the federal govemment. In the Native Women 's Association of

Canada v. Canada (1992), Justice Mahoney of the Federal Court of Appeai agreed that the interests of aboriginal women were threatened and expressed that, "by inviting and f'unding the participation of [other native] organizations in the current constitutional process and excluding equal participation of NWAC, the Canadian govemment has accorded the advocates of male domùiated aboriginal self-governments a preferred position.. .in a manner offensive to ss. 2@) and 28 of the Charter.'72o'

The dangers posed by the operation of constitutional minontarïanism and the functioning of a minoritarian constitutionai orientation are manifested in a mariner best described by Rousseau: "when there are factions, lesser associations detrimental to the greater one, the will of each then becomes generai in relation to its members and particular in relation to the state. It can then be said that there are no longer as many voten as there are men, but only as many as there are association^."^^^ Furthemore,

when the social bond begins to loosen and the state to weaken, when private interests make themseives felt and smaller associations begin to influence the whole society, then the common interest becomes distorted and encounters

- ---

'O' Cited in John Borrows, "Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics," Charthg the Consequences: The Impact of Charter Rights on Canadian Law and Politics ed. David Schneiderman and Kate Sutherland, (Toronto: University of Toronto Press, 1997), p. 180. Rousseau, "The Social Contracc" p.27. opposition, voting is no longer manimous, the general will is no longer the will of dl, conflicts and debates ari~e.~"-'

Therefore, in his quest to engineer the perfect society, Trudeau though he was sowing the seeds of cooperation by entrenching the Canadian Charter of Eüghts and Freedoms but instead he was doing the opposite - constnxcting new lines of social cleavage that heretofore had not found feriile soi1 in which to take root In retrospect, Trudeau concedes "it's tough to build a country to match a ~irearn.''~~

"3 m.,p.85-86. '" Cited in and , To Match A Drearn: A Fractical Guide to Canada's Constitution (Toronto: McCIelland and Stewart, 1998), p-vii- CHAPTER FLVE: DISCONTENT AND AMENDMENT OVERLOAD

The externalities of constitutional rninoritarianisrn serve witness to the defeat of two post- 1982 attempts to modify the constitution and the staging of an additional referendurn on Quebec separation. The emphasis on an asymmetric rights discourse, amplified by the condition of rninoritarianism, contributed to the f~lureof both the Meech Lake and

Charlottetown Accords. The deficiency of these two accords to accommodate both minoritarian daims and the demands of Quebec, has contributed to a sense of overail dissatisfaction on the part of al1 sorts of victimized groups.

In 1987, the First Ministers agreed to open up the Constitution in an attempt to bring

Quebec into the federation as a full and active participant. The federal govenunent had already consented to do its part during the 1984 election in a campaign promise uttered by to present Quebec with a constitutional accord the province codd sign "with honour and enthusiasm." However, the terms of reconciliation and thus, the agenda for any future negotiations on the constitution were to be devised solely by

Quebec Premier Robert Bourassa and the Quebec Liberals. The government of Quebec presented five rninimalist conditions that would permit the province to accept the 1982 constitutional amendrnents:

the constitutionai recognition of Quebec as a distinct society the recognition of a provincial role in the field of immigration a provision that would dow Quebec a voice in the selection of three Supreme Court judges an opting-out provision in federal spending programs in areas of exclusive provincial jurisdiction a constitutional veto on matters aEecting Quebec

Al1 five of these demands were realized in the ensuing . The operation of minoritarianism and the constitutional fkagmentation of Canadians became readily apparent during the development of the Meech Lake Accord. As Russell notes, "the accord was bitterly attacked by the newest of the constitutional stakeholders - the interest groups [Charter Canadians] who had been successful in the struggle over the

Charter of ~ights."~O~The assault on the accord by Charter Canadians manifested itself in two respects - process and substance (the conferral of status). In respect to process, when the decision was made to reopen the Constitution Act, the mzthod of bargaining reverted to the exercise of executive federalism. As a consequence, the formation of the accord was to be an elitist Sair of governments. Citizens were once again destined to be outsiders in the constitution-making process. Cairns notes that, this feature of the bargaining process contradicted the emerging development of a post-1982 Canadian constitutional culture:

the initial attempt to freeze out the public, that subsequently unraveled, occurred against the backdrop of the 1980-82 exercise in which citizens' groups had unquestionably contributed decisively to the final outcome. Not only did much of the precise wordïng of the Charter denve fiom interest group suggestions, but the very existence of the Charter would have been probfematic in the absence of strong public support. To some extent, therefore, the Charter came to be seen as their Charter by the many groups involved in its creation, and particular clauses as their clauses. The positive group mernories of having had an effect in the earlier process were supplemented by the fact that the Charter made them constitutional stakeholders. Thus the attempt to exclude them in Meech Lake was a constitutional indignity in a way that had been less tme of their attempted exclusion ic pre-Charter days. In this sense, the Charter delegitimated an executive federalism fist ministers' monopoly of the constitutional reform process and legitirnated citizen input.206

205 Russell, Constitutional Odvssey, p. 143. 'O6 Cairns, Reconfiwtions, "The Charter and lnterest Groups," p.272-273. As a consequence of the blatant neglect of any consultative process on the accord, Charter

Canadians who perceived themselves to be legitimate constitutional actors forged allies

with sympathetic premiers - most notably Frank McKenna of New Brunswick In fact,

McKenna made New Brunswick's approval conditional upon the negotiation of a

'kompanion accord" to the original agreement that was to offer enhanced constitutionai security to the Charter groups who felt threatened by the operation of the distinct society clause. Ln Manitoba, the minority government of Gary Filmon was held hostage by the preferences of the opposition parties who were also sympathetic to Charter groups. On the issue of process and the demise of the accord, Cairns summarizes that,

the Charter sends a powerful message to its many believers ...that the constitution no longer belongs to govemments, indeed that citizens are now part of the constitutional order, and thus that deference to the leadership role of govemments in constitutional mattes is not any more an unquestioned constitutional nom. The fact that Aboriginal, female, ethnoculturai, , the disabled, and other Canadians successfülly wielded the phrase "eleven-able-bodied white males" to undermine the illegitirnacy of the Meech Lake process cogently confirms the decline of deference among the new constitutional players. A quarter of a century ago, such a phrase, deprived of its contemporary message of culturai arrogance, would have been virtually meaningle~s.'~'

On the issue of substance, Charter Canadians lashed out at the distinct society provisions of the accord that were designed to secure the signature of Quebec. The distinct society clause delineated that:

2.(1) The Constitution of Canada shall be interpreted in a manner consistent with (a) the recognition that the existence of French-speakùig Canadians, centred in Quebec but also present elsewhere in Canada, and English-speaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada, and @) the recognition that Quebec constitutes within Canada a distinct society.

- -- -

'O7 -Ibid., "Barrien to Constitutional Renewal," p. 146-147. According to Russell, what made this provision so explosive was the fact that,

as the distinct society clause was tmslated into the symbolic terms of constitutional politics, it encroached on tender feelings of statu. By givïng constitutionai recognition in the defining features of Canada to Quebec, the English, and the French, the clause was seen by many who did not fit into any of its categories as a put-down, as denying their fundamentai importance to Canada?''

As a consequence, Canadians who were non-English andor non-French felt somewhat insignincant. In addition, the people of the First Nations were denied the status and recognition as a founding people. As Cairns notes, this latter omission represented a

"failure to appreciate the developing constitutional self-consciousness and constitutional ambitions of the aboriginal people, which were partly a by-product of the limited recognition they had achieved in the Constitution Act, 1982, and of their hstration over the failure of four constitutional conferences £kom 1983 to 1987 to ctarify theïr right~."~'~

The symboiic tendencies associated with the distinct society clause even prompted

Trudeau to intervene in the debate. Citing the inherent formation of a hierarchy of nghts in the constitution via the distinct society clause, Trudeau noted that, "those Canadians who fought for a single Canada, bilingud and muiticultural, can Say goodbye to their dream."2'0 Furthemore, Trudeau deged that, "for those who drearned of the Charter as a new beginning for Canada, where everyone would be on equal footing and where citizenship would finally be founded on a set of comrnody shared values, there is nothing

"'Russell, Constitutional Odyssev, p. 143. 'O9 Cairns, Reconfimrations, "The Charter and Interest Groups," p.268. ''O Pierre Elliott Trudeau, "Say Goodbye to the Dream of One Canada," Meech Lake and Canada: Perspectives Erom the West ed- Roger Gibbins (Edmonton: Acadernic Pnnting and Publishing, 1988), p.66. 78 lefi but tead"" Ironicaily, the actual source of the death of 'Yhe ciream" stems kom

Trudeau's own handling of the 198 1 process.

In the pre-1982 era, constitutional reform was an exercise in executive federalism and the process of elite accommodation. In 1982, the substance of the constitution was modified by Trudeau though the entrenchment of the Canadian Charter of Rights and

Freedoms. The Charter, in addition to codi@ing the individual rights and freedoms of

Canadians, also af5orded such guarantees to certain societai groups via the operation of sections 15, 23, 25,27 and 28. These enumerated groups or Charter Canadians "came to feel that their particular constitutional clauses or phrases belonged to them, that they had hard-eamed niches in the constitution and possessed constitutional stakes, indeed had constitutional identities [and i ta tus]."^" As a consequence of the recognition conferred by Trudeau, Charter Canadians believed that they had a central role to play in any post-

1982 exercise of cornprehensive constitutional reform. nierefore, the enactment of the

Charter by Trudeau not only altered the substance but the process of constitutional reform. As Caims states, the af6ording of asymmetrical rights has led to "our multiple fragmentation [a product of the Trudeavian Charter that] corrodes the process we employ in the search for accommodation that will overcome our division^."^" Not only does the multiple fkagmentation corrode the process, it acts to question cornmuflity and identity - the same questions the Charter was to answer in a definitive fashion.

The morass of Meech Lake left Canada more divided than in 1982. Intergovemmental relations assurned the tone of Quebec versus the Rest-of-Canada (ROC) as the Quebec

'' ' M.,p.67. *'' Cairns, Disruptions, p21. National Assembly passed a bill committing the government to hold a referendum either

on sovereignty or the basis of a new constitutional setîiement in hue or October of 1992.

In response to this threat, Mulroney re-opened constitutional negotiations.

Based on a lesson learned fiom the repudiation of Meech Lake, the consultative

process that uItimately Iead to the Charlottetown Accord represented an unprecedented

level of public participation. The fzrst stage in public consultations on the fashioning of

another constitutional accord assumed the shape of the Citizens Forum on Canada's

Future (Spicer Commission). The forum was designed to gauge public opinion on what

constitutional direction negotiations could resume. Moreover, as Commissioner Spicer

noted, the fonun was "a therapeutic exercise in aïring grïevances" associated with the

Meech Lake Accord. Approximately 400,000 Canadians made presentations to the

commission. The second consultative initiative was the establishment of the Special

Joint Comrnittee on the Amendhg Process (Beaudoin-Edwards). As Melvin H. Smith

sumrnarized, the submissions to the committee stressed that, "public dissatisfaction with the first rninisterial negotiation methods of developing constitutional amendment proposals is so high that any proposals now brought forward would be in immediate jeopardy, irrespective of their merits, if they were seen by the public as being a product

solely of eleven first ministers making deals behind closed do or^."^'^ Based on this finding, the federal govenunent announced in 1991 that any future constitutional process

would involve the presentation of proposals to a special joint committee (Special Joint

Comrnittee on a Renewed Canada - Castonguay-Dobbie, later Beaudoin-Dobbie).

"' Cairns, "Barriers to Constitutional Renewal," Reconfimirations, p. 155. Cited in Russell, Constitutional Odvssev, p. 167. However, the climax in the consultative process was the holding of a national referendum on the Charlottetown Accord on 26 October 1992. The above avenues of public consultation signitied that the practice of democratic constitutionalisrn - the mass inputAegitirnization of elite constitutional bargains, had evolved hto a permanent feature of Canadian constitutional politics.

The Charlottetown Accord was in large part about recognition and accommodation.

The assignment was to "find a modus vivendi responsive to the territorial cornmunities of federaiism, represented by govemments, to the non-temtonal societal pldism of the various groups that attach themselves to the Charter, and to the complexities of the

Aboriginal peoples."21s To achieve this end, the authors of the Charlottetown Accord included the Canada Clause - a def-g list of who we are as a people. The clause read:

2.(1) The Constitution of Canada, including the Canadian Charter of Rights and Freedoms, shdl be interpreted in a manner consistent with the following hdamental charactenstics: Canada is a democracy committed to a parliamentary and federai system of government and to the deof law; the Abonginal peoples of Canada, being the fmt peoples to govem this land, have the right to promote their languages, cultures and traditions and to ensure the integriq of their societies, and their goveniments constitute one of three orders of government in Canada; Quebec constitutes within Canada a distinct society, which includes a French-speaking majonty, a unique culture and a civil law tradition; Canadians and their governments are committed to the vitaiity and development of official language minority cornmunities throughout Canada; Canadians are committed to racial and ethnic equality in a society that includes citizens fkom many lands who have contributed, and continue to contribute, to the building of a strong Canada that reflects its cultural and racial diversity; Canadians are comrnitted to the equality of female and male persons; and Canadians confirm the principle of the equality of the provinces at the same thne as recognizing their diverse characteristics.

2'5 Cairns. "The Charter and Interest Groups," Reconfigumtions, p.277. (2) The role of the legislature and the Govemment of Quebec to preserve and promote the distinct society of Quebec is med.

Critics of the Canada Clause emerged denouncing the conglomeration of collectivïst provisions as a hierarchy of nghts that constitutionalized different orders of Canadians.

The most scathing criticism of the entrenchment of collective rights was delivered by

Trudeau.

When collective rights take precedence over individual fieedoms - as we see in countries where ideology shapes the coliectivity, where race, ethnic origin, language, and religion shape the coIlectivity - we see what can happen to the people who claim to live freely in such societies. When each citizen is not equai to al1 other citizens in the state, we are faced with a dictatorship, which arranges citizens in a hierarchy according to their beliefs.. .I submit to yoli that this Canada Clause offee us a hierarchy, a hierarchy of categorïes of citizens. We are not equds according to this Canada clause. It ail depends on where each individual stands.216

Furthemore, Trudeau insisted that, the inherent danger in recognizing collectivities was embedded in the fact "that every collectivity, if we are going to recognize collectivities, has some lesser collectivity within its bosom and, in the end, right will be determined by force of n~mbers."~"The successful legal challenge of the NWAC - discussed earlier, provides evidence of this claim.

The demise of the Charlottetown Accord in October 1992 meant that the post- 1982 disruption of Canadian society still lacked a cure. Ln large part, this disturbance was due to the actual process of democratic constitutionalism that had evoIved into a mandatory component of the overall prescription of comprehensive constitutional refom. If there is

Pierre EIIiott Trudeau, A Mess that Deserves a Big No (Toronto: Robert Davies, 1992), p. 17. Jean Laponce and John Meisel ed. Debatine; the Constitution: Proceedii~sof a Conference (Ottawa: University of Ottawa Press, 1994), p.46. anyone to blame for the hierarchy of rights and the Charlottetown mess that deserved a big no, it is the chief architect of our post-1982 coDStitutionaIism.

The constitutional fragmentation of Canadian society is the byproduct of the opening of the constitctional process in 1981 by Trudeau. In an effort to achieve the unilateral patriation of the constitution, Trudeau was forced to garner the support of non- govemmental groups as a moral counterweight to circumvent the united opposition of the

Gang of Eight. Through the fünctioning of the Specid Joint Comniittee, sections 15,23,

25, 27 and 28 of the Charter emerged to grant certain societai groups constitutional recognition and status. In tum, these collectivist provisions of the Charter fostered the developrnent of a constitutional orientation - constitutional minoritarianism. The Meech

Lake and Charlottetown Accords serve to illustrate the havoc created by the propnetary nature of the constitution imbued by the operation of the Charter and the consequent condition of minoritarianism. Specifically, Charter Canadians demand that procedure of constitutional reform involve the process of democratic constitutionalism - mass input/legitimization. Furthemore, the failure of both accords also notes the unwillingness of groups - particularly enumerated ones, to accept a constitutional process that is Limited to the federai-provincial division of powers. Cairns explains that,

the incorporation of various social categories into the Charter.. .has changed the nature of the constitution and its relation to Canadian society. As the constitution reaches down selectively into Canadian society it has become a social document of great symbolic value, the supreme instrument of social recognition and its denial.218

*18 Caims, Disruptions, p. 1 18. Therefore, the two post-1982 attempts at comprehensive constitutional reform where by

default an exercise in consociational constîtutionalism - a game of resource distribution

were the resource in question is constitutionai status and recognition.219

The Canadian Charter of Rights and Freedoms represents a failed experiment in

constitutional engineering that has served to undermine Trudeau's constitutionai vision.

The collectivist provisions of the Charter have multiplied the issue dimensions Canadians fight over. No longer is the Canadian constitutionai debate limited to just the issues of federalism and parliamentary govemment. The constitution is about societai recognition and status. As Cairns states,

by signaling out particdar groups or categones [of Canadians] for individualized treatment, it [the C harter/Constitution] sirnuitaneously attracts those groups or categories to it as patron to client, accords political saiience to some and not to others, and fractures the possibility of a common citizenship focusing on more abstract and more general concems. Moreover, it encourages the emergence of additional subdivisions in society to which it is pressured to provide another round of particular response~.~~

The constitutionai fragmentation of Canadian citizenship is real and it is based on sections 15, 23, 25, 27 and 28 of the Charter. These collective provisions, through the conferrd of recognition and status, have multiplied both, the nurnber of legitimate constitutional actors and the issue dimensions Canadians fight over. Furthermore, the

Trudeavian Charter has produced the condition of constitutional minoritarianism which is ironic since "minoritarianism is incompatible with the Trudeau orientation, which opposes speciai status for any group of cana di an^."^' Moreover, as Lusztig no tes,

. .. . . 219 Lusztig, "Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail," p.75 1. Cairns, "The Embedded State," Reconfimtions, p.45. Lusztig, c'Constitutional Pardysis: Why Canadian Constitutional Initiatives Are Doomed to Fail," p.760. "minorïtarianism.. .may be thought of as the anti-thesis of the Trudeau MC O."^ The

Charter is like a rock dropping on a &or that has a single crack (cleavage) -

French/English, in it. Suddedy, many more cracks appear. These cracks possess the potential to splinter (subdivide) since as Trudeau points out, "every collectivity, if we are going to recognize collectivities, has some lesser collectivity within its bosom."

Therefore, the Charter was not the seed of cooperation but rather the driving force in the constitutional fragmentation of Canadian society. The demise of the Meech Lake and

Charlottetown Accords provides the evidence that this fragmentation of Canadian society stills lacks a cure. Furthermore, the 1995 Quebec referendum on separation demonstrates that the Charter has not strengthened the development of a Canadian national comrnunity as envisioned by Trudeau. In fact, based on institutional design, there seems to be littie hope of any constitutiona1 reconciliation for some time to corne.

CONSTITtTTIONAL MODFICATION

Manfiedi and Lusztig argue that the capacity for constitutionai modification in Canada suffers fiom the existence of a condition referred to as arnendment overload - "the inability to achieve successful completion of constitutional modification as a result of key actors making incompatible and intractable demands during the constitutional negotiating pro ces^."^ In simple tems, "amendment overload is the product of a superficially sirnplistic phenornenon: too much and too intense cornpetition arnong groups to control or alter the redistributive impact of comprehensive constitutional rn~dification."~~The cause of amendment overload identïfied by Mdedi and Lusztig is redistributive

-Ibid. a Manfredi and Lusztig, "Why Do Formai Amenciments Fail?" indeterminancy - the condition of uncertainty expenenced on the part of constitutional

actors about the redistributive impact (the conferring of recognition and status) associated

with comprehensive constitutional modification- There are three sources of this

indetenninancy: amendment rigidity, interpretive fluidity and institutional

inclusi~eness.~~~

Amendment rigidity refers to how difficdt it is to amend the constitution. The

implications of redistributive indeterminancy are lessened where the procedure to amend the constiîution is simple because omissions may be corrected in the next series of negotiations quite easily. Conversely, the more rigid an amendment procedure, the greater the instance of redistributive indeterminancy. In such a scenario, "not only are groups less willing to compromise on their demands as a means of maintaining policy coalitions, but they are also much more likely to make their demands in unambiguous language that is invulnerable to judicial interpretation~."~~

Interpretive fluidity is a function of how much scope constitutional language Ieaves for judicial interpretation. The higher the incidence of interpretive Buidity, the greater the occasion for redistributive indetexmïnancy.

In the context of a constitution, the variable of institutional inclusiveness refers to the restriction of participants in the constitutional arena. Only groups that enjoy constitutional status are allowed to participate in formal constitutional forums.

According to Manfredi and Lusztig, "the number and types of groups that cm claim constitutional status is conditioned by constitutional Specificaüy, "certain des specifïcaily privilege certain gr~ups."~'Such des are "noninclusive insofar as there is an inherent limit to the number of collectivities that conceivably could mobilize for

statu^."^ Conversely, some constitutional "des may provide unanticipated

O ppomuiities for gro ups to acquire constitutional statu^."^^ Such des are inclusive in nature.

AMENDMlENT OVERLOAD IN CANADA

The faiIure of ail post-1982 attempts to achieve comprehensive constitutional refom in Canada denotes that the phenornenon of amendment overload afflicts the nation."'

Since the entrenchment of the Charter, the actual number of legitimate constitutional actors has ballooned beyond the federai and provincial governments to include al1 the societal groups enurnerated in sections 15, 23, 25,27 and 28, not to mention any discrete and insular xninorities who can mobilize to earn section 15 status. The increase in the number of constitutional players fosters the development of intense cornpetition among groups to control or alter the redistributive impact - the conferral of status and recognition, associated with comprehensive constitutional modification. As noted earlier, status or recognition permits those who hold it to stake preferential claims on the political resources of the state or on the political process itself. Therefore, Charter Canadians who attained constitutional status in 1982 via the Charter will attempt to impede non-Charter

Canadians in gaining such staîus. Furthemore, the potential for confZict among Charter

"m. -Ibid. Canadian groups rises as these enumerated groups search for an enhanced or bbtrumping"

ievel of constitutional status.

In terms of amendment rigidity, the process of amending the Canadian constitution

was dramatically transformed by Trudeau in 198 1 by ailowing the participation of non-

govemmental actors. As noted above, the public demands that some form of mass

inputllegitimization be a mandatory part of any post-1982 process of comprehensive

constitutional reform. The neglect of this aspect in 1987-1990 contributed to the failure

of the Meech Lake Accord. Compounded by the implications associated with the conferrai of status, it seems unlikely that any agreement on comprehensive constitutional reform will corne easily. The case of Charlottetown, illustrates a constitutional accord that had "something for everyone (well, alrnost everyone), but maybe not enough for any~ne."~'As the arnount of legitimate players increase, there is less likelihood that anyone's constitutionai demands can be satisfied.

Interpetive fluidity is a major factor in Canadian constitutional law. The constitution is a legai document that is subject to judicial interpretation. Therefore, judges are entnisted to define and interpret the provisions of the constitution and to serve as the final arbiters in constitutional decisions. The failure of the Meech Lake Accord is explained in part by the high incidence of interpretive fluidity associated with certain provisions of the accord - especially the distinct society clause. The Canada Clause of the Charlottetown

Accord aiso generated a great deal of interpretive fluidity because of the uncertainty surroundhg the possible interpretation of the provision as a potential hierarchy of rights.

Russell, Constitutional Odvssev, p. 173. In respect to institutional inclusiveness, the Canadian constitution is quite inclusive in nature. The inclusiveness of the constitution stems fiom the collectivist provisions of the

Charter that were entrenched in 1982 and the loophole offered by section 15 that permits non-Charter Canadians to mobilize and acquire constitutionai status through the corn.

The inclusiveness of the post-1982 constitution is in grave contrast to the pre-Charter noninclusiveness that restricted the scope of constitutional actors to the leaders of the provincial and federal govemments.

The development of amendment overioad in Canada compiicates and diminishes the potential to secure successfid comprehensive constitutional modification. ironically, the elements that contributed to the Canadian condition of amendment overload, stem fiom the entrenchment of the Charter by Trudeau. The Charter has failed to establish the unity of Canada as predicted by its visionary. Rather, the asymmetrical nghts discourse of the

Charter has produced a fiagmented and asymmetnc sense of citizenship that endangers the existence of a Canadian national community. As Cairns notes, "so accustomed have we become to seeing a parade of organizations representuig women, Aboriginal

Canadians, and ethnic communities dominate the organized expression of briefs before legislative cornmittees that we are in danger of forgecting they represent only a particular slice of Canadian s~ciet~."~'As the subdivision of Canadian socieq continues, the degree of accommodation necessary to forge a constitutional compromise will be mattainable - that is if we have not already passed the critical point.

-- -- -

233 Cairns, Reconfimrations, "The Charter and interest Groups," p.277. CFPAPTER SIX: CONCLUSION

The Canadian Charter of Rights and Freedoms as envisioned by Pierre Elliott Trudeau was designed to strengthen the Canadian national commufzity on the basis of the unitiiry model of citizenship. However, the Charter, in addition to codiQing the individual rights and fieedorns of Canadians, also afforded such guarantees to certain societal groups through sections 15,25,27 and 28. By deviahg fiom the terms of the unitary model, the

Charter created a social divide between enumerated citizens (Charter Canadians) and non-

Charter Canadians.

The decision to af3ord constitutional recognition and status to certain societai groups stems fiom Trudeau's personal handling of the 1981 reform process. During the proceedings of the Special Joint Committee of the Senate and House of Commons on the

Constitution, Trudeau sought to garner the support of non-governrnental groups as a moral counterweight to his unilateral initiative. By acceding to the demands of certain non-govemmental actors, Trudeau compromised a major facet in the pursuit of a Just

Society. When the atternpt was made to jettisoo these non-governmentai actors fkom the process of constitutional modification, it was to late.

By affording constitutional recognition and stimulation to the particdaristic self- consciousness of Canadians, the asyrnmetricai rights discourse of the Charter serves to militate against the formation of a national will. Specificaily, since the Charter is a legai document, Charter Canadians are placed in a position of political pnvilege whereby they can "stake preferential claims on the politicai resources of the state or on the political process itself." As discrete and insular minonties are successful in gaining judicially mandated section 15 constitutional status, the original mernbers the Charter Canadian

classification will engage in status seeking politics themselves in an attempt to obtain

higher forms of tnunping constitutional status - a condition that will contribute to the

exacerbation of the constitutional fi-agmentation of Canadians.

The entrenchment of the Charter, by Trudeau, also dramaticaliy altered the substance and process of constitutional reform in Canada- Prior to the Charter, the constitution was the preserve of governments restncted in scope to matters relating to the intergovernmental division of powers. Since 1982, the constitution via the Charter is about recognition in a hierarchy. In respect to process, Charter Canadians conceive themselves as legitimate constitutionai actors with proprietary stakes in the constitution.

The demise of the Meech Lake Accord sigsifisd that any post-1982 process of comprehensive constitutional reform shall include some form of mass

Uiput/legitimization on the part of Canadians. Furthemore, Meech celebrated the emergence of constitutional minoritarianism. The competing and often divergent claùns of constitutional minoritarianism lead to the repudiation of the Charlottetown Accord.

The failure of the Trudeau vision for Canada is readily apparent. The forging of a stable national cornmunity through the practice of symbolic constitutional engineering has left Canada more divided than in 1982. The question of whether anyone could have succeed where Trudeau so clearly fded is not the point. By attacking the Meech Lake and Charlottetown Accords, Trudeau has attempted to skew attention fiom the fact that

Canada's post-1982 acute constitutionai crisis is a legacy of his own actions and vision.

As a consequence, based on institutional design, the capacity for constitutional

modification in Canada is plagued by the condition of amendment overload. The divisions that may well have heaied over tirne, given the pluralistic nature of the legislative process (which obliges groups to form coalitions), has been "fiozen in amber" by Trudeau's Canadian Charter of Rights and Freedoms. Ajzenstat, Janet. "Constitution-Making and the Myth of the People," Constitutionai Predicament, ed. Curtis Cook. Montreal and Kingston: McGill-Queen's University Press, 1994.

Axworthy, Thomas S. "The Debate Over the Canadian Charter of Rights and Freedoms," Journal of Commonwealth and Comparative Politics, 24:3 (1986), 239-252.

Axworthy, Thomas S. and Pierre ElIiott Trudeau ed. Towards A Just Society: ne Trudeau Years. Toronto: Viking, 2 990.

Balkan, Joel. Just Words: Constitutional Rights and Social Wrones. Toronto: University of Toronto Press, 1997.

Banting, Keith and Richard Simeon. And No One Cheered: Federalism. Democracy and The Constitution Act. Toronto: Methuen, 1983.

Behiels, Michael D. "The Beginnings of Post-War Nationaiism in Quebec," Intemretinq Canada's Past, ed. JM. Bumsted. Toronto: Odord University Press, 1993.

Breton, Raymond. WbMeech Failed: Lessons For Canadian Constitution-Making. Ottawa: Renout, 1992.

Brodie, Ian. "The Market for Political Statu," Comparative Politics, 28 :3 (April 1W6),

Brodie, Ian and Neil Nevitte. "Evaluating the Citizens' Constitution Theory," Canadian Journal of Political Science, XXVI:2 (June 1993), 23 5-259.

------. "Clareing Differences: A Rejoinder to Alan Cairns's Defence of the Citizens7 Constitution Theory," Canadian Journal of Political Science, XXVI:2 (June 1993), 270-272.

Brodslq, Gwen and Shelagh Day. Canadian Charter Equaiitv Rights For Women: One Step Forward or Two Steps Back? Ottawa: Canadian Advisory Council on the Status of Women, 1989.

Brooke, Jeffery. Strange Bedfeliows. Trving Times: October 1992 and the Defeat of the Power Brokers. Toronto: Key Porter, 1993.

Bryden, Philip et al. ed. Protectîna Rights and Freedoms: Essavs on the Charter's Place in Canada's Political. Leeal. and Intellechial Life. Toronto: University of Toronto Press, 1994. Cairns, Alan C. "A Defence of the Citizens7 Constitution Theory: A Response to Ian Brodie and Neil Nevitte," Canadian Journal of Politicai Science, XXVI:2 (June 1993), 26 1-267.

------. "Citizens and Their Charter: Democratizing the Process of Constitutional Reform," The Meech Lake Primer, ed. Michael D. Behiels. Ottawa: University of Ottawa Press, 1989.

------The Charter Versus Federalism: the Dilemmas of Constitutional Refonn. Montreal and Kingston: Queen's University Press, 1992.

------"Constitution-Making, Government Self-Interest, and the Problem of Legitimacy," Political Su~~ortin Canada: The Cnsis Years, ed. Allan Komberg and Harold D. Clarke. Durham: Duke University Press, 1983.

------. Dimtions: Constitutional Struggles, fiom the Charter to Meech Lake. Toronto: McClelland and Stewart Inc., 199 1.

------. "Politicai Science, Ethnicity, and the Canadian Constitution," Federalism and Political Cornmunitv, ed. David P. Shugarman and Reg Whitaker. Peterborough: Broadview Press, 1989.

------. Reconfigurations: Canadian Citizenshi~and Constitutional Chanpe, ed. Douglas E. Williams. Toronto: McClelIand and Stewart Inc., 1995.

------. "Reflections on the Political Purposes of the Charter: The First Decade," The Charter: Ten Years Later, ed- Gerald-A. Beaudoin. Cowansville: Les Editions Yvon Blais Inc., 1992.

------. "The Fragmentation of Canadian Citizenship," Belonein~:The Meaninrr and Future of Canadian Citizenshi~,ed. William Kaplan. Montreal and Kingston: McGill- Queen's University Press, 1993.

------"The Politics of Constitutional Renewal in Canada," Redesimg the State: The Politics of Constitutional Change, ed. Keith G. Banting and Richard Simeon. Toronto: University of Toronto Press, 1985.

Canada, Parliament. Minutes of Proceedin~sand Evidence of the Special Joint Cornmittee of the Senate and House of Commons. 32ndParliament, 1980-8 1.

Cohen, Lenard, Patrick Smith and Paul Warwick. The Vision and the Game: Making the Canadian Constitution. Calgary: Detselig Enterprises Ltd., 1987.

Coyne, Deborah and Michael Vaipy, To Match A Drearn: A Practical Guide to Canada's Constitution. Toronto: McClelland and Stewart Inc., 1998. Gibbins, Roger ed Meech Lake and Canada: Pers~ectivesFrom the West. Edmonton: Academic Printhg, 1988.

Hogg, Peter W. Meech Lake Constitutionai Accord Annotated. Toronto: Canwell, 1988.

Knopff, Rainer and F.L. Morton. Charter Politics. Toronto: Nelson, 1992.

Kome, Penny. The Taking of Twentv-Eight: Women Challenge the Constitution. Toronto: Women's Educationd Press, 1983.

Laforest, Guy. Trudeau and the End of a Canadian Drearn. Montred and Kingston: McGill-Queen's University Press, 1995.

Laponce, Jean and John Meisel ed. Debathg the Constitution. Ottawa: University of Ottawa Press, 1994.

Laselva, Samuel V. The Mord Foundations of Canadian Federaiism: Paradoxes, Achievements. and Tragedies of Nationhood. Montred and Kingston: McGill- Queen's University Press, 1996.

Laxer, James and Robert Laxer. The Liberal ldea of Canada: and the Ouestion of Canada's Survivd. Toronto: James Lorimer, 1977.

Leeson, Howard and Roy Romanow and khn Whyte. Canada.. .Notwithstandine: The Making of the Constitution 1976-1982. Toronto: Carswell, 1984.

Lenihan, Donald et al. Canada: Reclaimina the Middle Ground. Montreal: hstitute for Research on Public Policy, 1994.

Lévesque, René. Memoirs. Toronto: McClelland and Stewart, 1995.

Levine, Marc V. The Reconquest of Montreal: Language Policv and Social Change in a Bilingual Citv. Philadelphia: Temple University Press, 1990.

Lusztig, Michael. "Constitutional Paralysis: Why Canadian Constitutional Amendments Are Doomed to Fail," Canadian Journal of Political Science, XXVII:4 (December 1994), 747-771.

-mm------. ''nie Long Road to Nowhere: Why the Circle of Cornmand Liberalism Cannot be Squared." 1999 forthcornhg Canadian Journal of Political Science.

Magnet, Joseph Eliot. Official Languages of Cauada Cowansville: Les Editions Yvon Blais Inc., 1995. Mandel, Michael. The Charter of Rights and the Legaiization of Politics in Canada. 2nd ed. Toronto: Thompson Educational Publishing Inc., 1994.

Mdedi, Christopher P. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionakm- Toronto: McClelland and Stewzrt, 1993. __-___. On the Virtues of a Lunited Constitution: \Nhv Canadians Were Correct to Reiect the Charlottetown Accord. Unpublished.

Manfiedi, Christopher P. and Michael Lusztig. "Why Do Forma1 Amendments Faii? Institutional Design and the Capacity For Constitutional Modification." 1997 forthcorning World Politics.

McRoberts, Kenneth. Misconceivinn Canada: The Stmnnle for National Unity. Don Mills: Oxford University Press, 1997.

McRoberts, Kenneth and Patrick Monahan ed. The Charlottetown Accord, the Referendum. and the Future of Canada. Toronto: University of Toronto Press, 1 993.

McRoberts, Kenneth and Dale Posgate. Ouebec: Social Channe and Political Crisis. Toronto: McClelland and Stewart, 1980.

Mc Whinoey, Edward. Canada and the Constitution 1 979- 1980. Toronto: University of Toronto Press, 1982.

Milne, David. The Canadian Constitution: From Patrïation to Meech Lake. Toronto: James Lorimer, 1989.

------. The New Canadian Constitution. Toronto: James Lorimer and Company, 1982.

Morton, F.L. "The Charter and Canada Outside Quebec," Be~ondOuebec: Taking Stock of Canada. ed. Ke~ethMcRoberts. Montreal and Kingston: Queen's University Press, 1995.

------. "The Political Impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science, XX: 1 (March 1 987), 3 1 -55.

Razack, Sherene. Canadian Feminism and the Law: The Women's Lead Action Fmd and the Pursuit of Eoualitv. Toronto: Second Story, 1991.

Reid, Scott. Lament For A Notion: The Life and Death of Canada's Bi1ingw.l Dream. Vancouver: Arsenal Pulp Press, 1993.

Riggs, A.R. and Tom Velk ed. Federalism in Peril. Vancouver: Fraser Institute, 1992, Roberts, Leslie. The Chief. Toronto: Clark, Irwin and Company, 1963.

Romanow, Roy and Howard Leeson and John Whyte. Canada.. .Notwithstanding: The Making of the Constitution 1976- 1982. Toronto: CarsweU/Methuen, 1984.

Rousseau, Jean Jacques. The Essential Rousseau. ed. Matthew Josephson. Markham: Penguin Books, 1983.

Russeil, Peter H. "Can the Canadians Be a Sovereign People?' Canadian Journal of Political Science, XXIV: 1O (December 199 l), 69 1-709. ___-___. Constitutional Odvssev: Can Canadians Become a Sovereim People? 2nded. Toronto: University of Toronto Press, 1993.

----- . "The Constitution, Citizenship and Ethnicity," Ethnicitv and Citizenshi~:The Canadian Case, ed. Jean Laponce and William S&an. London: Frank Cass and Co. Ltd., 1996.

------. "The Political Purposes of the Canadian Charter of Rights and Freedoms," Canadian Bar Review, LX1 (1993), 30-54.

Schneidennan, David and Kate Sutherland ed. Charthg- the Consesuences: The Impact of the Charter of Ri&& on Canadian Law and Politics. Toronto: University of Toronto Press, 1997.

Sheppard, Robert and Michael Valpy. The National Deal: The Fi&t for a Canadian Constitution. Toronto: Fleet Books, 1982.

Swinton, K.E. and C.J. Rogerson. Com~etingConstitutional Visions: The Meech Lake Accord. Toronto: Carswell, 1988-

Toner, Glen and Francois Bregha, "The Political Economy of Energy," Canadian Politics in the 1980s. ed- Michael S. Whittington and Glen Williams- Toronto: Methuen, 1984.

Trudeau, Pierre Elliott. A Canadian Charter of Human Rinhts. Ottawa: Queen's Printer, 1968.

------. A Mess That Deserves A Big; No. Toronto: Robert Davies, 1992.

------. Against the Current: Selected Writings 1939-1996. Toronto: McCIelland and Stewart, 1996.

------. Fatal Tilt: Speaking Out About Sovereimtv. Toronto: Harper Collins, 1991. -- . Federalism and the French Canadians. Toronto: Macmillan of Canada, 1968.

------Memoirs. Toronto: McCleiland and Stewart, 1993.

--- . The Constitution and the People of Canada. Ottawa: Queen's Printer, 1969.

--- - With a Bang, Not a Whimper: Pierre EIliott Trudeau Speaks Out. ed. Donald Johnston. Toronto: Stoddart Publishing Co., 198 8.

--- . "Who Speaks for Canada?: Denning and Sustaining a National Vision," The Meech Lake Primer: Conflictuia Views on the 1987 Constitutional Accord, ed. Michael D. Behiels. Ottawa: University of Ottawa Press, 1989.

Weiler, Joseph and Robin Elliott ed. Litieatine the Values of a Nation. Vancouver: Carswell, 1986.

Whyte, John and Christopher Kendall ed. The Life and Death of Constitutional Reform In Canada. Kingston: Instinite of Intergovemrnental Relations, 1990.