Just Watch Me

by John English

  Trudeau cared more about the Constitution than the NEP, and he urged Lalonde to reach an agreement with the producing provinces. For his part, Lougheed was also anxious to make a deal on the NEP, to achieve some stability. Nevertheless, things threatened to get out of control. The reliable Don Braid of the Edmonton Journal reported on January 16, 1981, that several Tory MPs from the West had spoken openly about separation in caucus. No separatist, Lougheed realized that Alberta’s new Heritage Fund, the disproportionate wealth of his province, and the serious troubles in Ontario’s large manufacturing centres could turn the rest of the country against Alberta, and Albertans against Canada itself. The results of such isolation could take the form of a provision in the Constitution that would be harmful to Alberta’s interests. In short, both parties faced pressures to compromise, particularly when the Alberta Court of Appeal ruled in March that the new federal excise tax on natural gas was not within federal jurisdiction. Ottawa immediately appealed, but the decision was a blow to the NEP. Then, in April, Alberta cut production, reducing the flow of Alberta oil to the rest of Canada, and the federal government responded with a “Lougheed levy” (a special tax of half a cent per litre on gasoline and other petroleum products, to make up for the cost of buying foreign oil). That same month, Lalonde and Merv Leitch met, and they soon settled down to reconcile the 150 items of difference between the federal government and Alberta.32

  That summer the federal government continued both to taunt and to woo Albertans. As the House of Commons sat late into the summer, tempers flared regularly, including Trudeau’s. Crisis piled upon crisis, calamity upon calamity. On July 9 Imperial Oil suspended work on its Cold Lake project (which had been sustained by a $40 million federal loan since January) because it had no agreement on a price for oil recovered from the oil sands. Lalonde, with Trudeau’s backing, told the Commons that the government would “not be blackmailed” by an oil company. A northern Alberta MP responded: “What the hell justice is that to the people of northern Alberta? Are they not Canadians?” Lalonde was less adamant when complaints came from Jack Gallagher of Dome that the grants to encourage frontier exploration were inadequate. He revised them promptly and consulted regularly with Gallagher and Nova’s Blair to make certain that Ottawa had allies. In their company, Lalonde even wore a stetson, drank Alberta rye, and courted other, smaller Canadian firms. But nothing seemed to help: the polls consistently indicated that Albertans stood firmly behind their premier in opposing both the NEP and the constitutional reforms and, of course, Liberals.33

  When Alberta cut production for the second time, in June, the federal government again responded, with a 1.6 cent per litre tax. With the third cut looming on September 1, 1981, the pressures were too intense, and both sides gave in. The federal agreement allowed Alberta to administer the Petroleum Incentive Payments, thereby keeping federal fingers out of many Alberta business arrangements. The federal government also gave up its right to tax the export of natural gas and accepted a complicated formula that divided “old” oil from “new” oil derived from the oil sands, offshore, and the Arctic frontier. As a result Canadian oil moved closer to the world price, but the federal government would also get the revenue it wanted and badly needed from the expected energy bonanza.

  For Canadian consumers, the deal meant that the price of oil would triple and the price of natural gas would double over the next five years, with the first increase of 0.4 cents per litre taking effect on October 1 as the “Lougheed levy” came to an end. In addition, it meant that a two-tiered system would persist, with “old” oil remaining below the world price while “new” oil rose to the world level. There would be a division of tax revenue whereby “industry,” more of which would be Canadian-owned because of the NEP, would receive 44.2 percent, Alberta 30.3 percent, and the federal government 25.5 percent—up from roughly 10 percent allotted to the federal government in the period before the fateful October 1980 budget. After the bitter arguments and salvos, the most welcome part of the agreement was the federal government’s commitment to make no tax changes during its term. With the patriation fight still festering, Trudeau said that “in keeping with the long tradition of Canadian federalism, we’ve bargained hard and we’ve reached a compromise—a good Canadian term—a compromise which is to the advantage of both the people of Alberta and generally the people of Canada.” On the front pages of Canadian newspapers, a beaming Trudeau clasped Lougheed’s firm hands as their eyes met warmly. In yet another photograph that appeared later, Lougheed and Trudeau were toasting each other with champagne just after the deal was sealed. But the romance was brief.

  Lougheed later regretted that photograph, which captured a moment when the deep rift between Alberta and Ottawa appeared to have ended. The celebration faded quickly from memory as the NEP came apart. The assumptions about energy prices, so carefully crafted by a gaggle of econometricians, proved badly wrong. Even at the time there were doubts, as analysts pored over the voluminous detail of the agreement. Jeff Sallot declared in the Globe and Mail on September 2 that a number of points remained “fuzzy,” but more troubling still was the price of oil itself: “The Alberta Government is gambling that world oil prices will continue to escalate at or near the same rates as they have in the past while the federal Government is tacitly acknowledging that there is indeed some kind of relationship between domestic and foreign prices for crude.” Although on that same day the Globe printed a detailed chart showing that consumer oil would increase from $27.30 on September 1, 1981, to $68.70 on July 1, 1986, that assumption rested mainly on the uncertain ways of OPEC, where Islamic fundamentalists and erratic Libyan dictators played a major part.

  On this wobbly foundation, Finance Department officials began to produce the fall budget, believing that the great uncertainties surrounding the energy sector had been sorted out.34 The agreement with the producing provinces appeared to have guaranteed future revenues for the federal government. As a contemporary analysis demonstrated, a rising oil price meant that the federal government would be the greatest beneficiary under the agreement.35 The converse was also true: a falling price would mean that the federal coffers would suffer most. In the fall of 1981, however, no serious commentator believed that the price would fall. Finance officials therefore continued with their preparations for a budget that would propose a revolution in the Canadian taxation system, believing that revenues were solid. As so often occurs with economic assumptions, the future confounded the prophets and the politicians.

  Almost exactly a year before, in October 1980, Trudeau had made his television announcement that he would patriate the Constitution. This declaration, and the turbulence it caused, intersected with Canada’s energy struggles and passed directly through the western provinces. There, Lougheed led the opposition to unilateral patriation of the Constitution and simultaneously demanded that provincial ownership of natural resources be enshrined in the revised Constitution.

  Lougheed had further roiled the federal plans with an almost inadvertent proposal that he had made during the September 1980 federal-provincial conference on patriation. In 1971, while preparing a provincial bill of rights in the fashion of John Diefenbaker’s federal statute, Lougheed, as new premier of Alberta, had met with Merv Leitch, then his attorney general, who told him that the proposed bill should have a “notwithstanding clause.” “What the hell is a notwithstanding clause?” Lougheed asked. Leitch explained that such a clause would be necessary if the government wanted to propose legislation contrary to the rights contained in the proposed Alberta Bill of Rights. Nine years later, when the premiers and the prime minister gathered in Ottawa for their first ministers’ conference, and Premiers Lyon and Blakeney voiced their opposition to Trudeau’s charter on the grounds of the supremacy of Parliament within the British tradition, Leitch again engaged Lougheed in a private discussion, suggesting that he “intervene by proposing a ‘notwithstanding clause’ along the lines of section 2 of the Alberta Bill of Rights.” It was a crucial interventio
n, even though Lougheed discovered that most of his fellow premiers had no idea what he was talking about at the time.36

  Despite the confusion, the idea of a notwithstanding clause whereby legislatures could ignore the provisions of the charter rapidly gained support. It combined with other forces that fundamentally changed the process begun in October 1980. Trudeau’s announcement of patriation immediately set off a fierce debate in the Commons with Joe Clark, one of the most effective parliamentary speakers of his time, who led the opposition to the proposal. The issue was complex, but the debate centred on the Charter of Rights and Freedom, which comprised sections 1 to 30 of the proposed new Canada Act. For Trudeau the major concern lay in sections 16 to 23, relating to the language question, which were cleverly drawn from the educational provisions of the so-called Canada Clause proposed by Lévesque in 1977. These sections stipulated that Canadian citizens whose first language was English or French could demand to have their children educated in that language during their pre-university years, so long as the numbers in the school warranted it. Another contested issue was the amending formula, which allowed for an interim period where unanimity would be required. If agreement was not reached in that time, a national referendum would be held, following the formula accepted at Victoria in 1971 by all provinces except Quebec.*

  There were other points of contention and unanswered questions too. Before long, Aboriginals, women, academics, business representatives, constitutional experts, and ordinary citizens all rushed forward to give their point of view to the joint parliamentary committee that had been established to hear Canadians’ response to the proposal. The committee, under Senator Harry Hayes of Calgary and Quebec MP Serge Joyal, planned to end its hearings in early December, to expedite the passing of the resolution for the British Parliament. Their plans soon went awry, probably because they decided to televise the hearings in an age when, according to Andy Warhol’s famous quip, everyone would have their fifteen minutes of fame. Observers are widely divided in their opinions of the results of the consultation. Edward McWhinney, a specialist in constitutional law, is harshly critical: “On looking through the committee’s list [of witnesses], it is difficult to avoid the conclusion that it was heavily weighted in favour of the more aggressive, vocal, and unrestrained, and also the best financed, of our burgeoning army of national pressure groups and special interests lobbies. There was an observable absence of balance—ethnic and cultural, religious, political and ideological, and above all linguistic and regional—in the list. Various interest groups and governments, in Quebec and in the West, decided to boycott or at least stay away from the committee’s hearings.”

  Yet feminist and Aboriginal groups celebrated the process as one that corrected some of the profound weaknesses in the earlier drafts of the new Constitution. Initially, however, the patriation package changed little. When the government tabled the resolution in the House on February 13, 1981, the only change was a preamble that included the addition of “God” (the product of intense lobbying by Conservative members) and the “rule of law,” although the meanings of that distinguished concept and of “God” were undefined. This lack of definition caused confused Conservative MPs on the committee to oppose a Liberal motion that included the word “God” because it seemed too vague. It was all good sport for Trudeau, who declared that the Conservative shenanigans were “inspired more by fear of the electorate than of God, and that is not very flattering to God.” While he himself did not think the word “God” was necessary in a secular document such as the Constitution, he solemnly declared that, personally, he had always favoured God.37

  In truth, Trudeau paid relatively little attention to the hearings, although he was pleased at the intervention of New Brunswick premier Richard Hatfield, who asked that his province be declared officially bilingual. Instead, the prime minister was focused on the struggle with the opposing premiers, who raised the stakes by declaring, first, that they would oppose patriation by lobbying in London, where the British Parliament had to pass a bill to permit patriation to occur, and, second, that they would try to overturn the legislation in Canadian courts. The Manitoba Supreme Court was the first to hear the case, as proceedings began in Winnipeg in December 1980. There were three central questions. First, if the patriation resolution was accepted, would “federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected, and if so, in what respect or respects?” Second, did a constitutional convention exist that allowed the federal government to request an amendment to the Constitution affecting federal-provincial relations without provincial consent? And third, was provincial agreement “constitutionally required” for amendments affecting federal-provincial relations and the rights of the provinces?38

  The Manitoba court rejected its own province’s arguments on February 3, 1981, by a 3 to 2 margin, although Chief Justice Samuel Freedman, who wrote the decision, declined to rule on the first question. It was a narrow win that caused little celebration in Ottawa’s Langevin Block. Worse news came on March 31, when three justices of the Newfoundland Supreme Court unanimously supported the province’s position on the same three questions that had been asked in Manitoba. Trudeau had argued that there was no legal question, but the courts’ divided decision now meant that there was. He was angry. He told the New York Times: “I still think it’s a political process and I’m determined to pursue it politically. And I feel so strongly about that, that I’m amazed that there hasn’t been an uprising in the country, at least amongst the thinking people.” He added, bitterly, “In a sense I’d rather lose the whole effort than go on record as saying that legislatures cannot legislate until they got permission from the Supreme Court.”39

  By this time Trudeau’s frustrations were evident to all. On March 23 he responded at length to criticisms of both the patriation package and his own view of Canada. There was, he argued, no “permanent equilibrium in the political affairs of any nation” but, rather, a “moving equilibrium,” particularly in a federation. His government was seeking an equilibrium for its times: “In sloughing off the last vestiges of colonialism, in entrenching those values Canadians hold in common, we are merely setting the stage with a contest about the kind of Canada we will have in the future. The contest about the two kinds of Canada, perhaps, will be laid out. Will we be highly centralized? Will we be a loose confederation of shopping centres, as some wag said about Los Angeles? Will we be something in between? I don’t know.” But he did know his own choice. He wanted his successors to have the freedom “to choose Canada’s destiny,” to be able to have “that debate about the equilibrium, about the kind of Canada they want.” In ending, he quoted a favourite poet, Charles Péguy, that “it is easy to keep one’s hands clean when one has no hands.” Casting his gaze around the Commons chamber, he declared: “We have hands, we set them to the plough, and we are not afraid to get them dirty for the simple reason that it is for a cause about which everybody is agreed that this is what the people want.”40

  But not all the people wanted what he proposed. Unlike the top courts in Manitoba and Newfoundland, the Quebec Supreme Court agreed with Trudeau on all three questions, four justices against one. And so, on April 28, 1981, the federal government took the case to the Supreme Court of Canada. This court had long been a backwater of the Canadian government: its justices were unknown, its judgments were rarely cited in other jurisdictions, and its presence in public discussion was almost invisible. Trudeau’s appointment of Bora Laskin to the court in 1970 and as chief justice in 1973 had jolted the legal community and the court’s own somnolence. Jewish, Harvard-educated, an academic rather than a practitioner, and a civil libertarian, Laskin had already shaken the tradition-encrusted foundations of Canada’s Supreme Court.

  Laskin, in the words of his biographer Philip Girard, hoped “that the Patriation Reference would finally give some shape to fundamentals of the Canadian Constitution t
hat had long remained obscure.” He shared Trudeau’s frustration that Canada was alone among developed nations in lacking the ability to amend its own Constitution. He also agreed with Trudeau that patriation should occur quickly—that the British MPs should “hold their nose” and speed passage of the bill at Westminster so that Canadians could mark Canada Day 1981 with their new Constitution. Many of Canada’s most eminent lawyers gathered in the Supreme Court building, designed in the thirties by Ernest Cormier (who was also the architect of the art deco home in Montreal that Trudeau had recently bought), and their arguments ranged widely for five days over the broken terrain of Canadian constitutional history. Those who knew the court well realized immediately that the justices were divided and that Laskin would not be able to lead them to a consensus. The court duly adjourned, but no judgment came. Trudeau was furious.41

  April was an exceptionally cruel month that year. On April 13, 1981, Lévesque had trounced Claude Ryan’s Liberals in the Quebec election. A bitter Ryan, and much of the Quebec press, blamed Trudeau for his loss, and during the summer he announced that his party would take a nationalist approach and oppose Trudeau’s patriation plan. Then, on April 16, when the “gang of eight” opposing premiers gathered in Ottawa, they signed an accord calling for a “simple” patriation of the Constitution—without a charter, equalization among the provinces, or protection for language rights, but including provisions for the provinces to “opt out” of constitutional amendments that they believed diminished their power. Lévesque was a major player in the plan, and his enthusiasm made him agree to an amending formula that would prevent Quebec from having a veto over any constitutional amendment. His agreement attracted little notice immediately but came to be of historic importance later. Trudeau declared bluntly that the accord was “a victory for those who want to move Canada toward dis-integration.” What the premiers proposed, he reiterated, was “a confederation of shopping centres … and that’s not the kind of Canada I want.” When asked whether he would negotiate, he pointed out that the premiers had sent him their accord by messenger and then fled the capital without even contacting him.