We are about to be assaulted with a media storm celebrating the 30th anniversary of the “repatriation” of Canada’s Constitution by then prime minister Pierre Trudeau.
Most media outlets will wax poetic about this event being seminal, and finally establishing Canada’s independence from Great Britain. There will be countless anecdotes of individuals and groups who have used the Charter to advance agenda and special interests. All this will be wrapped in a warm blanket of promoting diversity, tolerance and social justice. Trudeau’s final jab at Canadians will be portrayed as providing the country with a legislative framework that embraces democracy, freedom and fairness.
None of this is true. In the first instance, the notion the Constitution was “repatriated” suggests somehow that Trudeau forced his way into Buckingham Palace and wrested Canada’s Constitution from Queen Elizabeth’s bony hands. Our constitutional conventions resided here, and were evident in every law and court ruling until 1982. No “repatriation” was required.
Canada’s Constitution prior to repatriation was based on a series of acts of Parliament and conventions (Canadian and British) that defined the limited powers of the federal and provincial governments and how the two levels of governments interacted. Individual freedoms were protected by eight centuries of British common law, and God-given or natural (depending on your beliefs) rights were taken as a given. Freedoms of speech, religion, self-defence and property were defined and applied equally to all individuals. Canada had, prior to Trudeau’s meddling, the freest society in the Western world, and next to the American Constitution, the most clearly defined relationship between government and the people from whom government draws its authority to govern. That changed in 1982.
Trudeau’s 1982 Constitution had nothing to do with protecting rights and freedoms, but everything to do with the politics of Quebec and its relationship with Canada. Trudeau’s ill-conceived notions of “enshrining” rights drawn from differences of culture and language created a challenge for Trudeau and his bureaucrats. If Quebecers were to be bribed to stay in Canada by being offered special rights without appearing to be “favoured”, some mechanism would need to be manufactured to create an air of “fairness”. Thus we have the Charter, a part of the Constitution familiar to most Canadians, that provides all individuals are equal, but some are more equal than others.
The Trudeau regime funded a series of Charter challenges on behalf of Natives, gay advocates and environmental groups in an effort to justify the precedence of distinct group privileges over individual rights. The Supreme Court of Canada was, and is, only too happy to indulge Trudeau and his legacy, leaving us with court-sponsored heroin shooting galleries, different sentencing rules for Natives and “others” and human rights commissions. Individual rights are diminished or extinguished under the Charter.
In Trudeau’s Constitution, individuals do not enjoy private property rights. Freedom to worship became freedom of conscience and religion — two very different ideas. There is no express freedom of speech “enshrined” in the Constitution. In each case, within the document that is the Constitution, each traditional basic freedom Canadians enjoyed for two centuries, has been either redefined in language so vague as to invite wide interpretation, or qualified so as to be subservient to the application of “special” rights assigned to protected groups.
There is little, apart from the attitude of the current Conservative government regarding devolution of power, to stop a federal government backed by a Supreme Court from imposing tyranny on Canadians. Section 1 guarantees a series of fundamental freedoms (in Section 2), but only to the extent limits can be “demonstrably justified in a free and democratic society”. Section 33 allows a government, provincial or federal, to ignore interpretations of the Supreme Court of Canada by invoking the “notwithstanding clause” — but invoking Section 33 is a huge political risk, and is unlikely to happen, except in Quebec.
In the end, Quebec never signed onto the Constitution, and despite Trudeau’s attempts to simultaneously bully and appease Quebec separatists to stay in confederation, Quebec was still holding referenda on separating a decade after Trudeau remade Canadian society. The 1982 Constitution elevated defined and protected group privileges over individual rights and limited and qualified those remaining individual freedoms such that these freedoms are not guaranteed.
While the media and our elites in Toronto and Ottawa will celebrate Trudeau’s legacy, for the rest of us, there is little to celebrate in Trudeau’s blueprint for Canada, and much to fear.
Mark Walker is the publisher of the Penticton Western News.