Twenty-five years after the coming into force of the Charter of Rights and Freedoms, much has been written about how it has profoundly changed the Canadian political culture, how it has served as a unifying force in the country, and how a whole generation of young Canadians now describes itself as the children of the Charter.
I was privileged to be a participant in the dramatic constitutional negotiations of 1980-81, which resulted in the patriation of the Canadian Constitution and the enshrining of the Charter of Rights. A quarter of a century later, it is worth looking back and asking whether those of us who were involved in the drafting of the Charter and in the federal provincial negotiations surrounding it could have predicted the impact it would have.
Would we have foreseen the course the Charter has taken over the last 25 years? Would we have foreseen that the courts would legalize gay marriage or give a very broad interpretation to the concept of aboriginal rights? And these are only two examples of the profound and, in my view beneficial, social change that the Charter has brought.
Would we have foreseen that the surest way to score political points in an election campaign would be to accuse an adversary of not being fully supportive of the Charter? An honest answer would be that none of us would have made such a prediction at the time. In fact, many of the drafters were concerned that despite the fact the Charter would be an integral part of the Constitution, the courts would still find a way to interpret it as narrowly as they had interpreted the Canadian Bill of Rights over the previous two decades.
In hindsight, and with the benefit of historical perspective, we should have foreseen that the Charter would become as popular as it is today in Canada. Like almost all big steps forward in public affairs, the constitutional deal that was negotiated in Ottawa in November 1981 didn’t just happen. It wasn’t just a whim of Pierre Elliott Trudeau.
It was the culmination of a long process involving years of public debate about the importance of enshrining the protection of rights and freedoms including language rights, many rounds of on-again-off-again constitutional negotiations, and the Quebec referendum of 1980. It is also the case that by the 1980s, Parliament and many provincial legislatures had already passed significant human rights legislation and bills of rights in the decades after the Second World War.
The period of constitutional negotiations that began immediately after the Quebec referendum in May 1980 was a time of high-drama, high-stakes political poker, and great accomplishment that profoundly marked the history of Canada. While that summer of intense negotiations did not produce an immediate constitutional agreement, it was far from a failure. The issues that were discussed and particularly the proposed Charter of Rights and Freedoms captured the public imagination.
Unable to achieve immediate provincial agreement to constitutional reform, Trudeau threatened to take advantage of a relic of colonialism whereby the Constitution of Canada could only be amended in Westminster. He indicated his intention to seek a constitutional amendment in Great Britain patriating the Constitution, providing a new Canadian amending formula (which Trudeau wanted as much as he wanted a Charter), and enshrining a Charter of Rights and Freedoms.
The Trudeau government then tabled a draft Charter of Rights in the House of Commons and referred it to a joint committee of the Commons and the Senate for study. Few remember today that the draft Charter was designed to minimize potential provincial government opposition, and as such, provided minimalist protection of rights and maximum flexibility for legislatures to circumvent it. Trudeau had wanted to act quickly with little public debate, but he was forced by opposition tactics in Parliament to accept a lengthy and massive public consultation by the parliamentary committee.
The committee sat for 56 days, held 267 hours of hearings, and received representations from more than 1,200 groups and individuals. As a constitutional advisor to the minister of justice, I attended all the hearings along with a number of colleagues from the Department of Justice. We were there to listen to the witnesses, hear the views of members of the committee, and make recommendations to the minister for amendments to the draft Charter.
The hearings of the committee were an education for all of those who attended or participated.
From September 1980 to February 1981, we found that Canadians saw through the political process arguments of elites, who at the time were focussing their attention on the issue of unilateralism rather than on substance. Canadians did not want a weak Charter.
Aboriginal Canadians, women’s groups, representatives of people with disabilities, survivors of Japanese-Canadian Second World War relocation camps, members of multicultural groups, and many others made powerful and often emotional representations that resulted in a strong draft of the Charter that emerged from the committee, and which Trudeau eventually accepted.
One of the most important clauses that came from the committee hearings became s. 15 or the “equality” section of the current Charter.
The constitutional deal of 1981 was therefore made possible not only because of the negotiating skills of Trudeau, Jean Chrétien, Roy McMurtry, Roy Romanow, Bill Davis, and Peter Lougheed during the first ministers meeting of November 1981. It was possible because the Canadian public was ready and wanted a Charter of Rights and Freedoms.
While the ultimate constitutional agreement required the insertion of the famous “notwithstanding clause,” the massive support of Canadians for an entrenched Charter that was so evident in the early 1980s has remained so strong that no government today would risk the electoral consequences that the use of the notwithstanding clause would bring. The clause itself is a victim of the popularity of the Charter with Canadians.
Eddie Goldenberg is now a partner at Stikeman Elliott LLP. He was a constitutional advisor to the minister of justice from 1980 to 1982, and from 1993 to 2003 was senior policy advisor to then prime minister Jean Chrétien, and in 2003 was chief of staff to the prime minister. He is the author of the Canadian bestseller, The Way It Works: Inside Ottawa.