Hidden story behind our Charter
It was a cherished goal of prime minister Pierre Trudeau. But it almost didn’t come to fruition.
The patriation of Canada’s Constitution from Britain, and the Charter of Rights and Freedoms that accompanied it, was stalled by opposition from the provinces. It took an extraordinary compromise negotiated in a kitchen pantry to break the impasse.
Thirty years later, Star columnist Haroon Siddiqui speaks to the four men whose deal paved the way for the Canada we know today.
Canadians revel in the right and the luxury of constantly complaining about politics and politicians. Yet we also know how fortunate we are to live in a land where all citizens are equal — far more so than almost any other people on earth.
We owe this, in large measure, to the Charter of Rights and Freedoms, the 30th anniversary of which falls on Tuesday. It was on April17,1982, that the Queen signed a new Constitution, of which the Charter is an integral part.
Its chief architect was Pierre Elliott Trudeau, the steely Liberal prime minister who willed it on the nation, especially reluctant premiers, at a memorable first ministers conference in Ottawa in the fall of 1981.
The outcome hung in the balance until the end. Trudeau wanted the Charter. The premiers worried over loss of provincial power. The logjam was broken in a dramatic few hours by four people: Jean Chrétien, federal justice minister; Bill Davis, Conservative premier of Ontario; Roy Mcmurtry, Ontario attorney general; and Roy Romanow, NDP attorney general of Saskatchewan.
I spoke to them about their recollection of those four memorable days that changed Canada forever.
CANADA, A DOMINION
of Great Britain, had been governed under the 1867 British North America Act until 1931 when it won de facto independence. But the constitution could not be “brought home” from London because, as strange as it sounds today, Ottawa and the provinces could not agree on how they would ever amend it.
Several prime ministers tried but failed. Trudeau proved more determined than others. But his dream, too, seemed dead when he was defeated in 1979. He announced his retirement. But within months, Joe Clark’s minority Conservative government fell. The Liberals, having not yet found Trudeau’s replacement, called him back. He won.
He was barely into his second political life when the separatist Parti Québécois called a referendum to put his home province on the road to independence. He campaigned to help defeat it, 60 to 40 per cent. That done, he renewed his commitment to make Quebecers feel at home in Canada.
That would mean severing the old British connection, strengthening the federal government, bringing more Quebecers to Ottawa and enacting a Charter that, at its heart, would provide minority linguistic guarantees and also make Canada a constitutionally multicultural country.
He ran into resistance from the provinces, which did not want to lose their own powers. He threatened to proceed unilaterally by holding a national referendum. Eight provinces challenged him in the Supreme Court. In Sept. 1981, the judges said that Ottawa had the legal right to proceed but that such a move would go against tradition.
In one last attempt at a negotiated settlement, Trudeau called that first ministers meeting. By Day 3 — that was Nov. 4 — the participants were getting nowhere.
That’s when Chrétien, Mcmurtry and Romanow forged what became known as the “kitchen accord.”
“It was not the kitchen, actually, but rather a pantry,” recalled Romanow. “We happened to be there by accident — one Anglophone from Ontario, me a Ukrainian socialist from Saskatchewan, and this French Canadian from Shawinigan.
“Those two did most of the talking. I happened to be carrying a note pad, so I took down notes. Chrétien, having gone through one referendum in Quebec, was determined not to go through another that would end up dividing the country and dividing families. “I also dreaded a national referendum on such divisive issues as language.”
The prime minister and the premiers were divided on whether the Charter would end up undermin- ing Parliament. Allan Blakeney, the NDP premier of Saskatchewan, thought so. So did Conservative Sterling Lyon of Manitoba. The compromise was the so-called notwithstanding clause: the right of a government, federal or provincial, to opt out of decisions of the courts related to the Charter, for short periods. Trudeau hated the idea. Chrétien told Mcmurtry: “The boss, he sure likes to argue, and he wins most arguments. But you know, he can lose the war.” That evening Chrétien went to 24 Sussex Dr. “Pierre, if you don’t take the notwithstanding clause, you don’t have the Charter.” But the boss wouldn’t budge. Then the phone rang. Trudeau talked to someone for 10 minutes. Chrétien: “He never told me who had called but, suddenly, his attitude changed. He asked questions. Finally, at quarter to eleven, he said, he might agree.” The caller had been Davis, who told me: “I said to the prime minister, that it’d be very upsetting if we didn’t conclude on a happy note. “I said that we all could live with the notwithstanding clause. “He listened, but didn’t say a lot.” Romanow: “To me, Bill Davis was the real hero.” That was not the first time Davis had turned Trudeau around. Three months earlier, when the prime minister was determined to ignore the premiers and go ahead on his own, Davis flew to Ottawa for a private meeting at 24 Sussex. “I tried to convince him not to go forward unilaterally even if he thought he could win; the country would be bitterly divided. “I hinted that Ontario wouldn’t support him if he went ahead unilaterally. I didn’t get an answer that evening. But he did relent.” Davis had clout because he had been an early and strong supporter of Trudeau’s quest for a constitution, notwithstanding rumblings within his Conservative ranks. “There were a lot of things that Mr. Trudeau and I did not agree on, especially the economy. But on the constitution, I was totally with him. That got the core of my party very angry. Many just couldn’t stand him; they had a particular disaffection for him.” On the night of Nov. 4, the “kitchen accord” was put on paper. By then Sterling Lyon, who disliked Trudeau intensely, had returned to Manitoba to resume his re-election campaign. Mcmurtry phoned Lyon’s campaign manager, Nathan Nurgitz, of Winnipeg. “I told him, ‘Nate, I don’t claim to know Manitoba politics, but the Gang of Eight (premiers) that was opposed to the Charter is now reduced to two — Quebec and Manitoba. “You don’t want to be going into an election, especially a tough election, as the only one supporting Quebec.’ “Nate said, ‘I have got the point.’ ” Within hours Manitoba agreed. Only Quebec refused to come on board as Trudeau announced the agreement mid-morning Nov. 5 — and René Lévesque fumed.
Davis: “I felt badly for René. But Quebec had not been left out — it opted to be left out. Trudeau’s cabinet colleagues from Quebec as well as his MPS were in total support.”
At the conference, Davis and Lévesque had been seated to the right and left of Trudeau, a non-smoker, who had to put up with Lévesque’s cigarette chain smoking and Davis’ pipe puffing.
“My smoking was far less damaging than his. He inhaled and I didn’t,” mused Davis, who gave up his pipe 15 years ago.
As for Trudeau, at that moment of his greatest triumph, he was subdued. “The final compromises were not of my making,” he said, but added: “I hope that we can say it’s the best Charter in the world.”
To this day, about 80 per cent of Canadians concur.