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How We Got the Charter: a Reality Check

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How We Got the Charter: a Reality Check HOW WE GOT THE CHARTER: A REALITY CHECK Hugh Segal The Charter of Rights and Freedoms is the end result of a decade of discussions for terms of patriation of the Canadian Constitution that began with the Victoria Conference in 1971 and finally concluded a decade later with the agreement between Ottawa and nine provinces on patriating the Constitution with a Charter of Rights. The terms of patriation, and the amending formula, were always key drivers of the process. The Charter was essentially an add-on toward the end, and even then was only made possible in the November 1981 agreement because of the inclusion of the notwithstanding clause. Hugh Segal, who represented the Ontario government throughout, and was present at the creation of the Charter, separates Charter myth from reality. La Charte des droits et libertés est le résultat d’une décennie de discussions sur les modalités de rapatriement de la Constitution canadienne, qui ont commencé à la Conférence de Victoria de 1971 pour se terminer dix ans plus tard avec l’entente conclue entre Ottawa et neuf provinces sur un rapatriement accompagné d’une Charte des droits. Les modalités de ce rapatriement, de même que sa procédure de modification, ont toujours été des vecteurs clés du processus. La Charte était en essence une adjonction de fin de parcours, et même à ce stade, elle a été intégrée à l’entente de novembre 1981 grâce à la clause dérogatoire. Hugh Segal, qui a représenté le gouvernement ontarien tout au long du processus et qui était présent lors de la création de la Charte, départage les mythes de la réalité. ythology in the capturing and transmitting of a At the time, I was associate secretary of cabinet for fed- country’s history is both unavoidable and not eral provincial relations for the province of Ontario, and M without value. But there are times when the participated in various negotiation meetings among feder- distortions offered by the myth-makers can be harmful al and provincial officials leading up to the fateful meetings and disruptive. This is precisely the case about the rela- in Ottawa in November of 1981. The Charter was a critical tionship between the Charter of Rights and Freedoms in part of Ontario’s strategy shared in common with the fed- the Constitution Act signed by the Queen on April 17, eral government and the province of New Brunswick. It was 1982, in Ottawa. The main purpose from the very begin- a valuable part of the case made by Premier Bill Davis to ning of discussions in Victoria at the beginning of the countless meetings of Conservatives and others across 1970s was, and remained, the patriation of the Ontario and Canada about the Charter’s capacity to be a Constitution from the control of the British Parliament restraint upon all governments’ abilities to limit individual and the clear establishment of the sovereignty of rights or proceed in arbitrary ways. But to suggest that it Canadian parliaments and legislatures over our own con- was the central thematic or core motivation of the patria- stitution and its further amendment. The Charter of tion process and package is to wildly overstate its impor- Rights and Freedoms became part of the Trudeau patria- tance and role. tion strategy because the idea of it polled extremely well In fact, from Ontario’s perspective, and I suspect from that among almost all population groups of both languages of the indefatigable Richard Hatfield, New Brunswick’s remark- and all regions. It, of course, had its own individual mer- able premier, the key motivation for the post-1980 constitu- its for inclusion in the Constitution, and should not be in tional reform process was the commitment made by Davis, any way diminished by its political role as a popularity Hatfield, Peter Lougheed and other leaders during the 1980 ref- prop to make the patriation process relevant and reason- erendum in Quebec to the effect that if Quebecers voted no to ably salient to Canadians generally. the sovereignist option, Canadian leaders from other provinces 56 OPTIONS POLITIQUES FÉVRIER 2007 How we got the Charter: a reality check could be counted upon to work for con- rom the Quebec Act of 1774, to the and Pitfield on Trudeau’s staff. It was stitutional reform and improvement F padlock case in Quebec under decades since the Law Lords in the UK along with Quebecers thereafter. Duplessis, to the Ontario Human Rights ruled that women were “persons” for the On a succession of small aircraft Act brought in under Premier Robarts, to purpose of federal appointment and eligi- flights across the reaches of Ontario, I the first piece of legislation introduced bility to the Senate. The Charter of Rights would ask Premier Davis whether sup- by the newly elected Premier Lougheed and Freedoms was but one fuel for the porting Trudeau on the Constitution in Alberta (the Alberta Human Rights Act) campaign for patriation, as were other — despite his obvious unpopularity in Canadian legislatures and courts had arguments. Patriation was not about the the West, in rural Ontario and within been acting to protect human rights and Charter of Rights and Freedoms. the Ontario Conservative caucus at uphold the core rights of freedom of While chronologies of events can Queen’s Park — was really worth it. His expression, freedom of association, free- be troubling to the myth-makers, they response was always clear and direct: dom of religion and the rest for cen- are instructive in terms of what actual- “Ontario made a promise to the people turies. The Quebec legislature allowed ly happened as opposed to what the of Quebec in the referendum. Ontario Jews to sit in that elected body long myth-makers would wish us to believe will keep that promise.” happened. Prime Minister John Diefenbaker’s In 1978, near the end of its eflecting on how the government produced and passed the mandate, the Trudeau adminis- R mythology of the Charter tration published A Time for has negated the historical reality Canadian Bill of Rights in 1960, which Action, making the case for con- of the myriad of meetings held, while not a basic or constitutional stitutional reform. The govern- agreements reached and failed, provision had acquired greater sway ment was unpopular for various and resolutions in Parliament in the interpretation of legal and reasons, notably, reversing its and legislatures during the commitment in the 1974 elec- decade of activity between the legislative issues in the courts long tion not to impose price and failed Victoria First Ministers’ before Mr. Goldfarb and his research wage controls, which it did in Conference of 1971 (when an firm were testing the possibilities of a 1975, and the rather large agreement was reached that was charter of rights and freedoms for dimensions of a deficit and debt later vacated by the Bourassa compilation which had begun in administration during its first Messrs. Coutts, Kirby and Pitfield on earnest under Trudeau and incarnation) and November Trudeau’s staff. It was decades since Turner in 1973. In October of 1981 is helpful for two reasons. the Law Lords in the UK ruled that that year, a First Ministers’ It allows us to reflect on this dis- women were “persons” for the Conference met on the tortion effect in more contem- Constitution but could not reach porary contexts, and it allows us purpose of federal appointment and agreement. On January 25, 1979, to put the Charter of Rights and eligibility to the Senate. The Charter the Task Force on National Freedoms in some appropriate of Rights and Freedoms was but one Unity, the Pepin-Robarts perspective. fuel for the campaign for patriation, Commission, was appointed, Canada was not in any way which advised that there was a bereft of rights and freedoms as were other arguments. Patriation need for a new and distinct prior to the Charter, just as we was not about the Charter of Rights Canadian constitution that re- were not lacking in constitu- and Freedoms. balanced the federal provincial tional protections. Nor in fact relationship and was more reflec- were we lacking in a constitution. The before that right was extended within tive of regional and Quebec linguistic fact that our constitution was an act of the British Empire. and cultural concerns. (This task force the British Parliament, passed in 1867, took many months of hearings and dis- did not diminish that fact that it was rime Minister John Diefenbaker’s cussions.) A further meeting of first min- passed by that parliament on the basis P government produced and passed isters took place to follow up on the one of an agreement reached at Quebec the Canadian Bill of Rights in 1960, of the previous October, but no progress City and Charlottetown between 1865 which while not a basic or constitutional was made. The defeat of Trudeau in May and 1867 by the Fathers of provision had acquired greater sway in 1979, by the Progressive Conservatives Confederation, who represented demo- the interpretation of legal and legislative led by Joe Clark, took place despite (or cratically elected governments in the issues in the courts long before Mr. perhaps because of) the focus on the province of Canada (Quebec and Goldfarb and his research firm were test- Constitution by Trudeau. The defeat of Ontario) and the founding provinces of ing the possibilities of a charter of rights Clark’s minority government in the New Brunswick and Nova Scotia. and freedoms for Messrs. Coutts, Kirby House in December 1979, and on the POLICY OPTIONS 57 FEBRUARY 2007 Hugh Segal CP Photo Prime Minister Pierre Trudeau and the Queen at the signing for the patriation of the Constitution with an entrenched Charter of Rights — April 17, 1982.
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