Jean Chrétien says Quebec politicians have cultivated a “culture of grievance” over the province's exclusion from the 1982 deal to patriate the Constitution – even though Quebeckers overwhelmingly supported it at the time and have been benefiting from it ever since.
The former prime minister was justice minister at the time and did much of the heavy lifting to negotiate the pact that brought home the Constitution, with a landmark Charter of Rights, 30 years ago Tuesday.
He has been demonized by sovereigntists for his part in the so-called night of the long knives, when a compromise was hatched that won the support of nine provinces over the objections of Quebec's then-separatist government.
Tuesday, the 30th anniversary of the charter was marked by muted fanfare by the federal government. Heritage Minister James Moore and Justice Minister Rob Nicholson called it “an important step in the development of Canada's human rights policy,” with a nod to legislation passed more than five decades ago by former prime minister John Diefenbaker's Progressive Conservative government.
“Building on Diefenbaker's Canadian Bill of Rights of 1960, the Constitution Act of 1982 enshrined certain rights and freedoms that had historically been at the heart of Canadian society into a constitutional document known as the Charter of Rights and Freedoms,” their written statement said.
“The Constitution Act of 1982 empowered our government to amend every part of Canada's constitution, for the very first time.”
Prime Minister Stephen Harper suggested Monday the lack of enthusiasm is due to sensitivity over the lingering “divisions” caused by patriation.
“It will always be like that,” Mr. Chrétien told The Canadian Press. “They have a culture of grievance over it, not looking at the facts.”
The facts, Mr. Chrétien said, are that 90 per cent of Quebeckers supported the Charter of Rights and favoured ending Canada's status as a “legal colony” that had to go cap in hand to the British parliament to make any changes to the fundamental law of the land.
What's more, he said: “They use the Charter of Rights all the time in Quebec. And I'm sure that in the riding of [former Bloc Québécois leader Gilles]Duceppe, where the gay village is in Montreal, that they're quite happy with the Canadian Charter of Rights and Freedoms.”
Legalization of same-sex marriage is among the seminal court rulings that have resulted from the Charter, which protects fundamental civil liberties from infringement by federal or provincial governments.
Mr. Chrétien allowed he didn't anticipate that result when the charter was being drafted.
“At the time of the Charter of Rights 30 years ago, it was something that did not exist, gay marriage, at that time. So I was very surprised when the court, using the Charter, said it was discrimination not to have gay marriage.”
He said the courts have also gone “further than expected” in expanding minority education rights, which he deems a boon for francophones outside Quebec and anglophones in Quebec.
“I'd rather have too many freedoms than not enough,” Mr. Chrétien said. “But it is for the court to decide where are the limits because society evolves so rapidly. What was a certain limit 30 years ago is no more a limit today in many instances.”
One of the compromises Chretien persuaded former prime minister Pierre Trudeau to accept, in exchange for provincial support, was the notwithstanding clause. Governments can override some charter rights by expressly invoking the clause.
Mr. Chrétien said he's “very pleased” with the way the controversial clause has worked out. The idea was to give legislatures a safety valve in case the courts went too far in interpreting the charter but he said the fact that the clause has been used sparingly – by Quebec a number of times, by Saskatchewan once, once each by Alberta and the Yukon in laws that were never actually enacted, never by the federal government – suggests it's acted as a useful brake on judicial activism.
“It gives [judges]independence but it puts a barrier too because they know that if they go too far, Parliament will not accept it. Parliament has the mechanism to overcome an excessive decision, if I can use that term, by the Supreme Court.”
At the same time, governments have been careful not to invoke the clause willy nilly, for fear of sparking a public backlash. Quebec last used the clause in 1990 to reinstate a controversial French-only sign law, which had been found by the Supreme Court to violate the charter's guarantee of freedom of expression. The move is widely credited with turning public opinion in the rest of the country against the ill-fated Meech Lake constitutional accord, which had been aimed at belatedly securing Quebec's signature on the Constitution.
Many Conservatives, including members of Mr. Harper's government, have complained that the charter has allowed judges to usurp the role of Parliament in creating laws. Mr. Chrétien challenged such critics to invoke the notwithstanding clause and take their lumps in the court of public opinion, if they feel so strongly about it.
“It's there. They can only blame themselves. ... If you have strong views, you use the notwithstanding clause. It's easy to answer them. Go and good luck.”
Among the reasons Quebec's premier at the time, René Lévesque, refused to accept the patriation deal, was its failure to give the province a veto over future constitutional amendments. Some amendments require unanimous approval by all provinces and the federal government but most require the approval of only seven provinces representing at least 50 per cent of the country's population.
Since 1982, the Constitution has proven impossible to amend, other than a handful of bilateral amendments that required the approval of only Ottawa and one province, with no impact on other provinces. Two efforts to win national approval for amendments aimed at securing Quebec's endorsement of the Constitution – Meech Lake and the subsequent Charlottetown accord – failed spectacularly.
Mr. Chrétien said he doesn't believe it's a bad thing that the highest law in the land is difficult to change.
“I don't think a constitution should be something that can be amended very easily because that becomes an excuse. You know, you just pretend that the Constitution will cure all the problems of the world and, if you use it, you don't debate the real solution of the problem.”
He pointed out that, as prime minister, he actually made it even harder to amend the Constitution and, in the process, gave Quebec its long-sought veto. He passed legislation promising that the federal government would not to impose any constitutional change without the consent of the five regions. The legislation, which still stands, effectively gives a veto to British Columbia, Ontario and Quebec.
“To try to do anything with the Constitution without the consent of either Ontario, Quebec or B.C., you will have to change the law. [I]wish good luck to the prime minister who will go to Parliament and will say, ‘I want to take away the veto rights from Ontario, Quebec and British Columbia.’ He will have a hell of a problem, don't you think so?”