Whining over Constitution continues, 30 years on

Thirty years later they are still at it: the grievance nursers, the unity warners, the federalism renewers and the statesman solvers and the whole shambling constitutional industry, still rolling, still meeting, still funded. Still.

There are people approaching their fifties who were not old enough to vote when the Queen signed the Constitution Act 1982 into law, snipping the last legislative strings tying the Constitution of Canada to the Parliament of Great Britain, entrenching a homegrown process of amendment within it, adding a Charter of Rights and Freedoms, and much else.

After several decades of failed attempts, this ought to have been a moment for great national celebration — as it should be now, on its thirtieth anniversary. But that is to reckon without this country’s capacity for pointless politicization, sterile debates and perpetual indignation. And so the only people who will be marking the occasion, aside from a little gathering of Liberals in Toronto, will be the ones most convinced the country suffered some terrible calamity with patriation that they alone can put right: the constitutional industry, again.

Polling data presented to a three-day conference in Montreal show that “patriation has left a deep scar that is not yet ready to be healed,” according to University of Ottawa political scientist Francois Rocher, quoted in the Globe and Mail. The evidence: Only 15 per cent of Quebeckers surveyed in the Leger poll said the federal government was right to proceed, as the Globe reported it, “by patriating the Constitution without Quebec’s consent.”

As always, the remedy is more powers for Quebec: nearly 70 per cent of Quebecers are said to require these to begin the healing process. In the event such concessions are not forthcoming — just nine per cent of those outside the province would offer any — it is claimed 45 per cent of Quebecers would support the province becoming a separate country. The former Quebec minister of intergovernmental affairs, Benoit Pelletier, said it showed the necessity of reopening debate on the Constitution in order to “bring Quebec back into the constitutional fold.” Otherwise, he said, Quebec would be “permanently excluded.”

Let’s just hold it right there. There is no sense, none whatever, in which Quebec is “excluded” from “the constitutional fold.” The Constitution of Canada is the law of the land everywhere in Canada. It applies as much to Quebec, and to Quebecers, as it does to any other part of the country, and with as much popular consent: another recent poll, this one by CROP for the federalist group The Federal Idea, shows 80 per cent of Quebecers think patriation was a “good” or “very good” thing, while 88 per cent say the same of the charter.

Even the provincial government, while it has never “signed” the 1982 Constitution — as if that were a requirement — has never hesitated to avail itself of the same document’s protections, whether arguing from its premises in court or invoking the notwithstanding clause. The only reason it has refused to formally endorse it is because it has not wished to lose a useful point of leverage over the rest of the country. And the only reason it has enjoyed such leverage is because of the readiness of the rest of Canada to believe such endorsement necessary — the constitution having been patriated, as the Globe put it, “without Quebec’s consent.”

But it wasn’t done without Quebec’s consent. It was without the

government of Quebec’s consent, to be sure: the separatist government of Rene Levesque. But patriation was supported, not only by Quebec public opinion, then as now, but by 72 of the 75 members of Parliament from the province. No, don’t wave that away, for if we concede that the only legitimate representatives of the people of Quebec are the members of the National Assembly, we might as well concede the whole ball of wax.

But weren’t those Quebec Liberal MPS massively rejected at the next federal election? Yes: in common with Liberals across the land. We’d just come through a vicious recession, and after 21 years of nearly unbroken Liberal rule, the country was heartily sick of them. Or if patriation was such a gift to the separatist movement, how is it that support for separation sunk to such lows in the years afterward? How did the Parti Quebecois come itself to be so massively rejected in 1985?

If the intervening decades were tumultuous, it had nothing to do with any reduction in Quebec’s legitimate authority. Far from the centralizing document of myth, the 1982 Constitution did not take away powers from any province. It gave powers to the provinces — over resources, for example, to say nothing of the amending formula — while imposing several obligations on the federal government of particular interest to Quebec: on equalization, on language, on the composition of the Supreme Court.

The only respect in which the powers of the provinces were diminished was via the introduction of the Charter of Rights — though even here all provinces had access to the notwithstanding clause, while Quebec alone was permitted to opt out of certain provisions on minority language schooling. The “assault” on Quebec’s powers is as fictional as the “betrayal” of Levesque by the other premiers — the ones he had already abandoned — and all the rest of the mythology that has surrounded that event.

It was, rather, the very efforts of the constitutional industry to close this supposed wound that condemned us to so many years of constitutional torment, beginning in 1986 with the long process of constitutional negotiations that led to the Meech Lake accord, and only finally ending with the passage of the Clarity Act.

And yet, all these years later, they are still at it. Still.