Eddie Goldenberg is a partner in the law firm of Bennett Jones and was chief of staff of former prime minister Jean Chrétien.
Institutional memory is a fundamental prerequisite to good government. The lack of it almost inevitably produces unfortunate and sometimes dangerous consequences. Yet institutional memory, particularly when it comes to constitutional change, is sorely lacking these days in Ottawa, as the Prime Minister and opposition leaders compete to see who can best assist Quebec Premier François Legault in bringing his Trojan horse through the gates of the Canadian Constitution.
I was heavily involved in the period of constitutional debate and change in the 1980s that resulted in the patriation of the Constitution, an amending formula, the enactment of the Charter of Rights, and the rejection of both the Meech Lake and the Charlottetown Accords. That period, which began with unsuccessful attempts at constitutional reform in the 1960s and 1970s, taught lessons that today’s political leaders should heed.
Canadians taught their governments that attempts to change the Constitution should not be undertaken lightly or often; that the consequences of failure should not be overplayed or exaggerated; and that reform is difficult to achieve, takes a long time, dominates the national debate, arouses great passions and is successful only when there is a substantial national consensus.
In September, 1980, then prime minister Pierre Trudeau tried to ram through constitutional change without proper debate. Parliament and the Supreme Court stopped him, with the result that after lengthy public consultation and discussion there was broad consensus on a much better package that was enacted in 1982. Brian Mulroney, from 1987 to 1990, tried to ram through the Meech Lake accord. He failed and, by exaggerating the consequences of failure, propelled Canada into an almost fatal national unity crisis. He had not learned the lesson that, despite early agreement by first ministers, elite accommodation is not sufficient; public involvement and public opinion have a critical role to play.
Today, all Canadians expect their governments to be laser focused on the pandemic and the economy. Instead, for no good reason, Mr. Legault has decided that now is the time to propose constitutional change. If history is a guide, he is opening the door to a divisive national debate. The Quebec Premier has proposed a constitutional amendment that he argues merely reflects the reality that Quebec is a nation with French as the only official language. According to Section 43 of the Constitution, such an amendment would require the approval of the House of Commons and the Senate if it only affects Quebec and the status of the French language in that province. However, it may affect more than Quebec.
There is nothing unilateral in what Quebec proposes. If, as Mr. Legault argues, the change merely reflects reality, then there is no need for it, and Mr. Trudeau should urge Parliament to focus on the economy and leave the Constitution alone. However, it appears from the Prime Minister’s initial comments that he is falling into Mr. Legault’s trap; he should step back before it closes.
Mr. Trudeau should understand that the courts always give meaning, sometimes in unexpected ways, to constitutional language. The courts may well interpret the proposed amendment in a manner that affects the operation of the federation as a whole, which would require the approval of Parliament plus seven provinces representing 50 per cent of the population. The Prime Minister therefore bears the responsibility to ensure that such an amendment not be enacted without full public debate, understanding and acceptance of all the potential consequences, including those for minority language rights in Quebec and the rest of Canada.
The Prime Minister, the cabinet and the Liberal caucus, which has always been influential in constitutional matters, must also consider the broader implications of approving the proposed constitutional amendment. History has taught us that once one proposed amendment opens the constitutional Pandora’s box, others inevitably follow and the national debate becomes more and more divisive.
If Quebec can reopen constitutional talks, how will the Prime Minister react when other provinces do the same? Indeed, it took Premier Jason Kenney less than a week to welcome Quebec’s move and state that he might use the precedent to introduce “unilateral” constitutional amendments to strengthen Alberta’s autonomy. He had already threatened to propose a constitutional amendment to change the equalization formula. What if New Brunswick makes the same move on its official bilingualism, or Manitoba seeks a constitutional amendment to abolish bilingual legislation?
The Prime Minister has a solemn duty to consider the consequences for the whole country of any reopening of the Constitution. He must slam the constitutional door shut now before it is too late.
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