Are Canadians finally at peace with their Constitution?

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Andrew Parkin is the executive director of the Environics Institute for Survey Research. The Confederation of Tomorrow 2022 Survey of Canadians is conducted by the Environics Institute for Survey Research, the Centre of Excellence on the Canadian Federation, the Canada West Foundation, the Centre D’Analyse Politique – Constitution et Fédéralisme, and the Brian Mulroney Institute of Government. Results are available at environicsinstitute.org/projects.

Canadian political scientists are notorious party poopers.

After the optimism of the country’s centenary in 1967, one set of scholars published a group of essays entitled Must Canada Fail? In a similar fashion, the adoption of a new, made-in-Canada Constitution in 1982 was met with another classic academic volume: And No One Cheered. Now, as the country celebrates the 40th anniversary of its patriated Constitution and the Charter of Rights and Freedoms, political scholars are at it again, with titles such as Canada in Question hitting the shelves. No one seems interested in publishing a book called Canada: Things are More or Less Okay.

Admittedly, it is hard to look on the bright side these days. The two-year anniversary of the COVID-19 pandemic passed with infection rates still alarmingly high. The year 2022 has not ushered in new signs of hope, but rather a new war in Europe with global repercussions. And there is no shortage of trouble at home, from inflation and the deficit, to disinformation-driven occupations and disturbing hate crimes. Where, oh where, is there good news to celebrate?

At least we’re not squabbling over the Constitution any more. It is easy to forget, but for four decades – starting with a dead-end deal to fix the document’s amendment formula in the early 1960s to disagreements over Quebec’s distinct status in the late 1990s – debating the fundamental law of the country rivalled hockey as our national pastime. Not only were constitutional conferences regular occurrences, they were also televised (and yes, people actually watched them). And as with the hockey playoffs, we sometimes found ourselves sitting on the edge of our seats, notably on a late October evening in 1995 as the results of the second Quebec referendum were tallied.

More than 25 years after that drama, and on the eve of the 40th anniversary of patriation and the Charter, it is tempting to think that Canadians are finally at peace with their Constitution. Perhaps we have matured to the point that we can wrestle with the challenges that face us without calling the country’s very nature (or existence) into question. But there is a nagging suspicion that we may have turned the page on our fractious past without ever fixing anything. After all, there is a difference between resolving an issue and ignoring it. Have we grown to embrace our Constitution, or simply grown too wary of bringing it up in polite conversation?

The latest Confederation of Tomorrow (COT) survey, a comprehensive annual study of how Canadians see themselves and their country, offers some answers. It shows that whatever our differences, there is one part of the Constitution about which we almost unanimously agree: the Charter of Rights and Freedoms. The overwhelming majority of people in Canada – young and old, men and women, rich and poor, Indigenous and non-Indigenous – say the Charter has been a good thing for the country. This may be the only survey question that elicits the same strong, positive response from supporters of Québec solidaire and of Alberta’s United Conservative Party. If anything in this country unites us, it is support for the Charter.

On this point, Canadians are nothing if not consistent. A look back through polls from the early 1980s shows strong support for the Charter from the start. As a new constitutional deal began to take shape, proposals for a “bill of rights” or a “charter of human rights” gained popularity across the country, even among the federal government’s separatist opponents in Quebec. In the ensuing years, the courts began to use the Charter as grounds to strike down laws passed by duly elected legislatures, prompting some commentators to worry about judicial overreach. But the public remained supportive. On the occasion of the Charter’s 20th anniversary in 2002, a landmark survey found that nine in 10 Canadians who had heard of the Charter said it was a good thing. That proportion remains unchanged today.

The debate over the Charter may be settled, but other issues are unresolved. Attempts at further constitutional reform in the late 1980s and early 1990s ended in failure. The lesson that most drew from the experience is that it would be foolish for anyone to try again. In 2017, when Quebec’s Liberal provincial government published a white paper on the future of Quebec in Canada, Prime Minister Justin Trudeau felt the need to immediately reassure Canadians that “we are not opening the Constitution.”

Is the public really that uninterested in talking about the way we govern ourselves? Yes and no. Our COT survey asked Canadians about restarting constitutional talks to address six different issues: the Senate; the monarchy; the status of Quebec; the powers of the provinces; equalization; and the rights of Indigenous people. In no case does a majority favour reopening the Constitution. But in each of the six cases, a significant minority does (typically, at least one in three Canadians). Indigenous rights and the monarchy are at the top of the list; on those topics, two in five favour restarting constitutional talks.

Naturally, support for reopening the Constitution is higher among specific constituencies, for specific issues. About one in two francophone Quebeckers favour restarting constitutional talks to deal with the issue of the monarchy. Roughly the same proportion of Albertans prefer a new constitutional deal on equalization. This same level of support exists among Indigenous people for constitutional talks on Indigenous rights. But here lies the nub of the challenge of constitutional deal-making in Canada: Yes, many people seek constitutional change, but each part of the country wants to change something different. Even if we agree to start talking, how likely is it that we will all want to have the same conversation?

We may not be quite so divided, though. In both Quebec and Alberta, the COT survey shows that interests in talking about both the status of Quebec and equalization tend to coincide. People who are open to talks on one of these issues are more likely to be open to talks on the other. Most non-Indigenous survey respondents who want to reopen the Constitution to deal with the Senate or the powers of provinces also favour new talks on Indigenous rights. Certainly, there are many Canadians (about three in 10) who prefer to avoid dealing with any of these items. But those who do have an interest appear to be willing to raise their own concerns without turning their backs on all the others.

At the very least, the message the survey sends is this: It is no longer accurate to pretend that no one in this country wants to talk about the Constitution. Many Canadians have an unignorable interest in exploring how we govern ourselves and how this might change over time. Pretending otherwise may be smart politics in the short term when larger crises loom, but over the longer term, something may have to give.

It is fair to ask, though, whether these pockets of support for constitutional change aren’t concentrated among the older generations – those nostalgic for the high-stakes wheeling and dealing of the past. The notion that the country has unfinished constitutional business to take care of might resonate with those who cheered or jeered for the package signed by the Queen on Parliament Hill 40 years ago. Does anyone born after 1982 care?

There are indeed signs that younger people are less interested in engaging in the dramas of the past, and nowhere is this more striking than in Quebec. Younger francophones in the province are significantly less likely than their older counterparts to want to reopen the Constitution to deal with the status of Quebec or the federal-provincial distribution of powers. And they are much less likely to attach any importance to finding a way to entice Quebec to sign the existing Constitution.

This generational gap is evident in other parts of Canada as well. In the Prairie provinces, the prospect of new constitutional talks to deal with the Senate or equalization is much less appealing to younger generations than to older ones.

Younger Canadians, however, are not so much uninterested in the Constitution as they are interested in other things. They may yawn at tales of the political conflicts that shaped the lives of their parents and grandparents. But in the case of Indigenous rights, younger Canadians are much more likely than their older counterparts to see a need for constitutional change.

Events will also conspire to ensure that interest in the Constitution will not fade with the passage of time. The most inevitable of these will be the coronation of a new monarch. While the Queen is widely respected for her kindness and devotion to duty, the same cannot be said of her heirs. The appearance of an unfamiliar face on Canadian currency, and the expectation that public officials swear an oath of allegiance to a controversial king for whom few hold affection, will have a jarring effect. When the Queen dies, the country will be faced with the question of whether we can put past constitutional debates behind us in order to tackle new ones.

The periodic invocation by provincial governments of the Constitution’s Section 33, the notwithstanding clause that allows legislatures to override the Charter, will also help keep the Constitution front of mind from time to time. Quebec’s Bill 21 banning public officials from wearing visible religious symbols is the current case in point (though by no means the only example).

The COT survey shows that Quebeckers, like other Canadians, are generally comfortable with the Supreme Court stepping in to strike down a law that violates the Charter. But a difference appears when it comes to the potential use of Section 33. Outside of Quebec, the weight of public opinion is against the idea that governments should be able to circumvent the courts by invoking it. Quebeckers are more evenly divided. And both inside and outside Quebec, a significant number are unsure, suggesting that public opinion could shift either way, notably as the court challenge to Bill 21 proceeds.

Once again, however, the generational gap comes into play. Older francophones in Quebec tend to favour allowing governments to use Section 33 to keep a law that would otherwise violate the Charter in place. Younger francophones in the province do not. This cleavage is papered over by Quebec’s political leaders, who like to speak of a “Quebec consensus” on Bill 21. The best response to these leaders when using this phrasing might be: okay, boomer. Millennial and Gen Z Quebeckers have their own views. And this is enough to ensure the continuation of a lively debate in Canada on the role of legislatures and the courts in defining the scope of our rights and freedoms.

To those hoping that the lack of fanfare accompanying this week’s 40th anniversary of patriation signals that the era of constitutional reform is well and truly over, disappointment likely awaits. One way or another, the question will arise as to whether our fundamental law is suitable for a 21st-century parliamentary democracy (one struggling, among other things, to overcome the legacy of colonialism). And this really should come as no surprise. Each of Canada’s constitutional deals, from the colonial edicts of the 18th century to the patriation of 1982, was designed to find a workable accommodation among diverse peoples. Over time, we have grown not only more diverse, but more appreciative of the advantages that this diversity brings. There will be no conclusion to the discussions about how best to govern ourselves, as our identities and aspirations are not fixed. It’s a feature, not a bug.

We will know that we are truly at peace with our Constitution not when we pretend that we never have to talk about it again, but when we are open to talking about it with an eye to the new challenges that will shape the country’s future.

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