Prime Minister Harper said in Chile that the patriation of the constitution was so controversial he couldn’t celebrate the Charter.
Patriation happened after an exhaustive national discussion. A separatist government in Quebec was never going to support bringing the constitution home, with or without a Charter. It would have meant admitting a federal Canada had a real existence.
Patriation was not an exercise in partisanship. Neither was the Charter. The origins of the desire to “bring the Constitution home” go back decades. The quest for a better protection for individual and group rights can be traced to all three major parties of the day – the NDP, the Progressive Conservatives and the Liberals. John Diefenbaker, Ellen Fairclough, Gordon Fairweather, Tommy Douglas, David Lewis, and Ed Broadbent were just as much authors of the Charter as Pierre Trudeau and Jean Chrétien. I was proud to fight for it then, I am proud to fight for it now.
The draft that Mr Trudeau presented to Parliament was changed in many fundamental respects by the Special Committee of Parliament – by aboriginal groups, by women, by those representing multicultural communities and the disabled, by the legal community and many individual presenters. It was improved as a result. Let’s give credit where credit is due.
Two Progressive Conservative Premiers – Bill Davis and Richard Hatfield – were early supporters of the Charter and Patriation. Once the Supreme Court of Canada told Parliament that more consensus was required to respect the federal principle, long and protracted negotiations brought the other seven Premiers onside.
Quebec members of parliament and the Senate supported the principle of patriation and the Charter, but Rene Levesque did not.
Would he have ever accepted any such package ? Not in a million years. The mythology of a “conspiracy” and the “night of the long knives” is a separatist concoction designed to discredit the idea of Canada itself. It bears no relation to reality. The notion that one province had a veto over Patriation or the acceptance of the Charter was specifically rejected by the Supreme Court of Canada when Quebec appealed unsuccessfully right after Patriation.
Another myth that should be blown to smithereens is that the Charter is a “centralizing” document. Canada today is the most decentralized federation in the world, and the Charter does not give any additional powers to the federal government. Rather, it limits the powers of all governments.
This has been reaffirmed countless times by the Supreme Court of Canada in countless cases since 1982. If parliament or provincial legislatures aren’t prepared to recognize individual rights, the courts will step in, not in the name of either level of government, but in the name of freedom.
I also campaigned hard for Meech and Charlottetown, honourable efforts at improving the Constitution. But that in no sense implied that the Charter was a mistake or something that required an apology. The constitutional door is always open, and constitutional business is always unfinished. But the gnashing of teeth about the Charter and patriation has to stop. It is unworthy and unnecessary.
Another myth floating around is that Quebec has the unilateral right to secede from the country on the basis of a question controlled by the provincial assembly, in an election controlled by the assembly, and with the support of 50 percent plus one of the population voting.
This approach has been specifically rejected by the Supreme Court of Canada. Quebec is not an oppressed minority, Canada is not a dictatorship, Canadian federalism, democracy, and the protection of minorities are all real things. A “clear vote on a clear question” would trigger discussions, not secession. The fantasies on this issue, now being fuelled not just by the Parti Quebecois but by the NDP in their “Sherbrooke Declaration”, have to be understood as pandering, an appeasement defies logic and constitutional reason.
Let’s celebrate the Charter and the fact that the constitution is ours, without apology and without wringing our hands. Let’s have a government prepared to celebrate the Canadian constitution without qualification.
Bob Rae is a former member of Parliament and former premier of Ontario.