ARCHITECT OF HIS OWN MISFORTUNE: THE FAlLURE OF THE TRUDEAU VISION FOR CANADA 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 Acquisitions and Acquisitions et Bibliogaphic Services services bibliographiques 395 Wellington Street 395. rue Wellington Ottawa ON KIAON4 Ottawa ON KIA ON4 Canada canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/nlm, de reproduction sur papier ou sur format électronique. 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 Quebec 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 Just Society 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 Canadians 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," (Toronto: 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 Charlottetown Accord. 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 Canadian identity, 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