Brian Peckford: ‘The Constitution was a victory’
Re: Will ‘jurocracy’ face a counter-revolution? Ted Morton, April 16
What Prof. Ted Morton and others like him — none of whom were present for any of the 17 months of negotiations leading up the Patriation Agreement — get terribly wrong is their failure to realize that the Patriation Agreement/constitution Act was a package.
It was not just the Charter of Rights and Freedoms, as important as that is, that was being negotiated.
The Constitution Act 1982 contains 61 sections; the Charter constitutes 34 of them.
In reading Prof. Morton’s article one is left with the impression that it was just the Charter that was being decided. Bargaining over numerous items (including greater say for provinces over the fishery, for example) over 17 months, including a Supreme Court decision, and the negotiating of 12 items was the order of the day.
So it was just not minority language rights. There were Aboriginal rights, regional disparities and equalization guarantees, and an amending formula without which there would be no Charter or Constitution Act in the first place.
These and other issues were at play throughout the negotiations right up to the last day — Nov. 5, 1981.
And The Charter of Rights and Freedoms was not Pierre Elliott Trudeau’s charter — his version was defeated by the Supreme Court in September 1981 when the court ruled against his unilateral effort to patriate with his version.
The Charter and the whole 61 items of the Agreement/act was the collective effort of 11 First Ministers over 17 months and a Supreme Court of Canada decision, with, in the end, Quebec refusing to sign.
In my talks with people all over the country in the past year it has been apparent that they respect and honour the
Charter’s individual freedoms and rights and are adamant that governments and the courts respect and honour them, too. That’s where the issue really is right now — an unease by the public that our democracy is failing, led by the very institutions that are supposed to uphold those rights and freedoms.
The Patriation Agreement/constitution Act 1982 is not a failure — it is a victory for people everywhere in Canada, with their individual rights and freedoms being enshrined in our Constitution, our most sacred document. And it is a victory for Aboriginal peoples to be identified and recognized for who they are, Inuit, Innu and Métis, and their existing treaties recognized, and a victory for have-not regions of the country to be acknowledged and supported, and for a Constitution that is now ours and amended with our own amending formula.
What is most distressing to people like me — who were there and who helped craft the document — is that people and the press continue to write and carry misrepresentations of the agreement/act. For example, neither Prof. Morton nor anyone else from the National Post called me for my comments on this article. Not that they had to do that, but one might think that comments from someone who was there would be of some value.
And to top it off, none of the recent negative commentaries about the Charter have bothered to record/carry comment upon perhaps the most important part of the Charter — its positive, powerful first words:
‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:’