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How We Got the Charter: a Reality Check

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 of the Canadian Constitution that began with the Victoria Conference in 1971 and finally concluded a decade later with the agreement between 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 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 , eral government and the province of . It was 1982, in Ottawa. The main purpose from the very begin- a valuable part of the case made by Premier 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 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 , 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, and other leaders during the 1980 ref- prop to make the patriation process relevant and reason- erendum in to the effect that if Quebecers voted no to ably salient to 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 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 (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 ’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 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 . 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 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 , 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 and the Queen at the signing for the patriation of the Constitution with an entrenched Charter of Rights — April 17, 1982. The signing ceremony was the culmination of a decade of strenuous efforts by Trudeau to bring the Constitution home from Westminster, then considered to be more central to the purpose of the process than the Charter itself.

hustings in February 1980, had more to of the amending formula going forward, and the Senate began examining the do with the political incompetence of etc., were at least as important if not proposed to Her Majesty that administration than the more so than any Charter reference. respecting the patriation and amend- Constitution, which did not really come ment of the . up. Indeed, had the Clark government ttawa failed once again to get At this point, a combination of not fallen, Trudeau would have O agreement, really until the late events outside Trudeau’s control began remained in retirement, and there would fall of 1981. Premiers who were to reshape the debate and the nature of have been no Charter. opposed to unilateral patriation and the the process. Sir Anthony Kershaw’s The victory of the “Non” side in imposition of the Charter launched Westminster Parliament Committee on Quebec on May 20, 1980, reflected the court actions to slow Trudeau down. Foreign Affairs concluded in a formal desire of Quebecers both to give a Neither the British government nor the report that the British Parliament was reformed constitutional framework in Canadian Parliament was particularly under no obligation to pass a request Canada their support, and to reject the enamoured of being caught up among from Ottawa if there was no agreement risk/benefit mix associated with the sov- feuding Canadian governments. concurrently from other Canadian ereignist experiment. After the referen- Liberals had to use closure to provinces. Quebec and other provinces dum, Ottawa suggested a 12-item agenda impose a motion on the House of rejoiced in this expression of British par- for constitutional reform, 12 items that Commons, in October of 1980, to estab- liamentary sovereignty over Canadian included but were in no way dominated lish a joint committee of the House and affairs — a sovereignty that would not by the Charter. Items like Supreme Court Senate to consider constitutional reform be pushed around by anyone, actually. appointment processes, opting out proposals. In November of 1980, a Various courts of appeal across the options on federal programs, the nature Special Joint Committee of the House provinces ruled in different ways about

58 OPTIONS POLITIQUES FÉVRIER 2007 How we got the Charter: a reality check what capacity Canada had to proceed to with anything), a blunder that fuelled could target social programs (to full constitutional patriation without the sovereignist movement for years to Aboriginal senior citizens in provincial accord. With the decision come, was brought in by the same , for example) or act in taken by the advocate of this new Charter of Rights. emergency times without being found to hear an appeal on the Manitoba The final negotiations in early to be discriminatory under the Charter. Court of Appeal ruling (which did sup- November of 1981 are also shrouded in There would have been no Charter port Ottawa’s right to proceed), both the mythologies about who did what without this bridging and key provi- House of Commons and the Senate where and how much it mattered to sion, which bridged between unelect- adopted separate motions that would see neither house So when the provinces and Ottawa went back to the table that proceed with a vote on the fall, they were driven by a series of events, resolutions, British constitutional motion until House of Commons reports and a political context not in any such time as the Supreme Court ruled. In a historic and way shaped by any debate on the Charter of Rights and Solomonic ruling on Freedoms or its content. The context was shaped by a Supreme September 28, 1981, the Court ruling that made reaching a reasonable consensus Supreme Court determined absolutely essential, backed up by a British parliamentary reality that while it was legal for Ottawa to proceed (a 7-2 inhospitable to a lack of reasonable consensus among Canadian judgment), it also ruled, by a government and provincial petitioners. 6-3 margin, that constitu- tional convention required substantial the outcome. The clear dynamics to ed courts and parliaments, and provincial consent. the negotiation I saw as a member of between the British tradition of parlia- the Ontario delegation, however, were mentary supremacy and the French o when the provinces and Ottawa few but compelling: the inability of a Napoleonic and ensuing American tra- S went back to the table that fall, they sovereignist Lévesque government’s dition of explicit declaration of the were driven by a series of events, resolu- delegation to agree to anything that rights people had. Davis informed tions, British House of Commons validated the federation had much Trudeau by telephone that this was a reports and a political context not in more to do with their conduct than fair and appropriate package, and any way shaped by any debate on the their trumped-up sense of exclusion rejecting it (which some in the Charter of Rights and Freedoms or its and humiliation (the first being untrue Trudeau cabinet, if not Trudeau him- content. The context was shaped by a and the latter being an electoral tactic self, wished to do) would terminate Supreme Court ruling that made reach- to be used incessantly); René Ontario’s support. ing a reasonable consensus absolutely Lévesque’s impulsive and spontaneous As we observe a quarter-century essential, backed up by a British parlia- agreement in a closed session debate for the Charter, we should in our mentary reality inhospitable to a lack of with Trudeau to a referendum on the reflections remember that we are cele- reasonable consensus among Canadian Constitution (without consulting the brating a quarter-century for Canadian government and provincial petitioners. seven other anti-unilateral-patriation constitutional sovereignty, the demo- In fact large measures of the oppo- so-called “gang of Eight” dissenting cratic and judicial process that brought sition to the patriation process by many premiers, which freed them to look for it about and the various provisions of of the provinces were driven by their their own separate peace); when an that 1982 Constitution, which, while concerns about the erosion of parlia- impasse seemed unavoidable, inclusive of the Charter, were and mentary sovereignty and legal prece- Lougheed’s insistence on a day and remain far more important and signif- dent classically and since Magna Carta, evening of further discussions — as icant than the Charter itself. It was the core protection of individual rights rushing out to announce failure that framework that enabled the and freedoms, and by the rather seemed counter-productive); the pro- Charter to become a reality, and not Americanized approach reflected by a posal that was formally advanced by the other way around. specific charter of rights and freedoms. Saskatchewan and Newfoundland for a It is not lost on some of the participants non obstante or “notwithstanding” Senator Hugh Segal (Conservative, that the worst deployment of arbitrary clause as an integral part of the Kingston-Frontenac-Leeds) is a former measures in Canada’s postwar history, Charter, that affirmed the right of any associate secretary of the Ontario cabinet namely the imposition of the War parliament or legislature to introduce for federal provincial relations and for- Measures Act, the arrest in the middle of legislation “notwithstanding the mer chief of staff to the prime minister of the night of hundreds of Quebecers Charter” which could last for five Canada and was president of the IRPP (not one of whom was ever charged years. This was done so governments from 1999 to 2006.

POLICY OPTIONS 59 FEBRUARY 2007

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