VIU Speech Saturday Speaker Series Elder College, Vancouver Island
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VIU Speech Saturday Speaker Series Elder College, Vancouver Island University Nanoose Community Centre, Vancouver Island. September 21, 2019 Honourable A. Brian Peckford P.C. LLD What Really Happened When Our Constitution Was Patriated Background I have been interested in history from an early age. In fact it was my best subject in terms of grades in my final high school year . At University I studied both the classics —Greece and Rome and Medieval and Renaissance History. And to this day I enjoy reading it; I have just been reading the book entitled The Dynasties of China and another one entitled The History of the English Speaking Peoples Since 1900. But bitter experience has taught me to be highly skeptical of the accounts of various events. The seminal event was the The Patriation Of The Canadian Constitution , November , 1981. It was a field day for lawyers and Canada has plenty of them. For example , among the First Ministers at the time the majority were lawyers : there was the Prime Minister , Pierre Trudeau and six of the ten Premiers : Peter Lougheed, Allan Blakney, Sterling Lyon, William Davis , Richard Hatfield and John Buchanan . Bill Bennett was a former businessman, Rene Levesque a former journalist, Angus McClean , a former farmer/ Air Force Officer, and yours truly a lowly high school teacher. This idea of Canada having its own Constitution and hence having it amended here in Canada rather than having to refer back to the UK parliament has been a live issue for a long time. As a matter of fact efforts in this regard began in 1927. Again in 1931, 1935-36, 1961, 1964, 1971, and 1978-79. So what we were about in 1981 was hardly a novel activity. Yet a contentious one . Pierre Eliot Trudeau was interested in the idea again and of adding a Charter of Rights and Freedoms as well. Of course, the country already had a Bill of Rights that had been introduced in the late 1960 ’s by Prime Minister John G. Diefenbaker . However, it had its flaws since some would say it could be amended at will by the Federal Government , applied only in Federal matters , and was being interpreted by the Supreme Court in a narrow manner which failed to give protection to individuals. However, of interest to many now might be the fact that on the positive side the Bill of Rights continued the right to life idea and the protection of property rights . This partriation effort was given added impetus because of the fact that Mr. Trudeau had promised Quebec in the referendum of 1980 the vague notion of ‘ renewed federalism’, viewed in Quebec at the time as a major undertaking by the Prime Minister to accommodate some of Quebec’s demands. And so it came to pass that the Federal Government and he Provinces became engaged in a seventeen month process of seeing whether an agreement could be reached to Patriate the Constitution and simultaneously add a Charter of Rights and Freedoms. From the outset many Provinces had misgivings in that there was not a lot of trust by many of them in the Prime Minister intentions given his inclination to move towards a stronger Federal Government , hence inevitably weakening powers of the Provinces . Of course , Quebec would oppose the slightest moves in this direction. But Quebec was not alone . The western Provinces were wary of the prospect of having their power over natural resources weakened . Additionally, there were concerns over issues of property rights and education. In Newfoundland and Labrador’s case we were faced with a fishery that was almost all Federally controlled, a potential offshore oil and gas industry over which the Trudeau Government had indicated it wanted to control and an existing Power Contract with Quebec that denied Newfoundland any share of the hundreds of millions of dollars of economic rent that was annually going to Quebec. Therefore, Newfoundland and Labrador was naturally inclined to side with Quebec and the western provinces in skepticism towards the Federal Government as the talks began. Of course , it became clear early on that this was to be a very difficult process . Given that the Federal Government intended to not just patriate the Constitution with an amending formula but also to have many provisions in a new Charter that had the potential to impact the powers of the Provinces, there was great concern . There developed ,therefore , a real difference on how this whole process was being viewed, leading to the formation of two real divisions : the Federal Government and the Provinces of Ontario and New Brunswick as one faction and the other eight Provinces as the second faction, erroneously called by the press the ‘gang of eight.’ It should be noted that right from the start the Press were almost totally on the Federal Government’s side. Hence, the ‘gang of eight ‘ designation was not surprising to many of us who were wary of a Federal Government that signalled in many of its actions a viewpoint of a stronger Federal Government and weaker Provinces. This was also confirmed many times in the numerous talks among Federal Provincial Ministers and the many public servants involved. It is important when looking back at this time , in 1980 , that the Federal Government had proposed a massive overhaul of energy policy whereby the oil and gas resources of the Provinces ( clearly under Provincial Jurisdiction) would be taxed by the Federal Government , the proceeds to be part of a giant redistributive plan reminiscent of the best of socialist policies. In addition , one must recall that other unilateral Federal actions were being undertaken at that time under the umbrella of Regional Economic Development actions , many in areas of Provincial jurisdiction. So it is fair to say that the skeptical nature of many of the Provinces on this new patriation proposal was rooted not in some inherent dislike of the people who were then a part of the Federal Government or some other prejudice or theory of Government but rather in ‘on the ground federal Policies ‘ that were attempting to fundamentally change the nature of the federation. The Federal Government seemed a little surprised when through the negotiations the Provinces also had their own items for constitutional consideration . Hence, the agenda became more that just an amending formula and a Charter Of Rights and Freedoms. Hence, in June of 1980 all parties agreed on a twelve point agenda , not just Patriation, amending formula and a Charter. This new agenda was then to be discussed by a Committee of Ministers and Officials . This led to a First Ministers meeting in September which unfortunately ended without any measurable progress. Of course, Prime Minister Pierre Trudeau through his Ministers and officials made it clear that thy were not amused with all this Provincial activity and especially with the group of eight and its vocal commentary on constitutional change. It was not a surprise then to the group of eight when in the fall of 1980 , October 2 to be exact, after the many months of talks , that the Federal Government decided to move ahead unilaterally with a resolution of the Parliament of Canada to patriate the Constitution with an amending formula and a Charter of Rights and Freedoms. The Supreme Court said: ‘The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. ‘ The group of eight were hardly amused at this unilateral turn of events and appealed this unilateral Federal Action to three Courts Of Appeal , Manitoba, Quebec and Newfoundland and the decisions of these courts along with the Federal Government ( through a resolution of parliament) sent the resolution to the Supreme Court to ascertain its constitutionality. This court’s hearing was on April 28,29,30 and May 1 and 4 , 1981 with the decision issued September 28, 1981. The decision was momentous ! The Federal Government and Prime Minister Trudeau lost in its efforts to unilaterally change the Constitution of this nation. The unilateral action contemplated by the Government of Canada was ruled to be unconstitutional . Many excerpts of the decision could be quoted . The one found on page 67 seems most clear and relevant: ‘In no instance has an amendment to the B.N.A. Act been enacted which directly affected federal-provincial relationships in the sense of changing provincial legislative powers, in the absence of federal consultation with and the consent of all the provinces. Notably, this procedure continued to be followed in the four instances which occurred after the enactment of the Statute of Westminster, 1931.’ Some commentators have referenced that the Federal action was legal . But that is a technicality . The Constitutionality of a measure trumps a legal technicality. And that’s what the court said. Even the Federal Government’s later written statements blatantly played down the unconstitutionality of the matter , questioning what the court had actually ruled . Just listen to a Federal Government explanation on one of their websites: ‘On September 28, 1981, the Supreme Court of Canada reached a majority conclusion that the Federal initiative was legal; however it expressed reservations about its legitimacy on the ground that it would run counter to the conventions and the spirit of the federal system.’ Well , like so much about this story , distortions are many . The Court did not express reservations , it said the federal action was unconstitutional —-period! Here is the Court’s own words: ‘We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required for the passing of the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada" and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense.’ What some had forgotten ( or thought somehow would now be overlooked by the court ) was that the the Constitution of Canada consisted of both a written part and a convention or custom part and both is what constitutes the Constitution of the nation.