Just Watch Me

by John English

  * The underlying forces behind these political differences are revealed by a comparison of the Canadian average gross domestic product per capita and the provincial equivalent: in 1971 Ontario stood at 117.8 percent of the Canadian average; Quebec, at 90.1%; Alberta, at 107.%; and Saskatchewan, at 83.3%. In 1981 the comparable figures were Ontario, 102.7%; Quebec, 86%; Alberta, 157.2%; and Saskatchewan, 103%. Not surprisingly, Trudeau insisted that the constitutional reform include equalization among the provinces. Canada Year Book 1994 (Ottawa: Statistics Canada, 1993), 614. The “Misery Index,” created by American economist Arthur Okun, combines inflation and unemployment rates. It was highest in the period 1979–81, according to a study reported by columnist Ellen Roseman. Toronto Star, March 24, 2008.

  * Ed Clark was a particular focus of journalist Peter Foster, who attributed the overreach of the NEP to a “bureaucratic elite,” who “if they had actually worked … were likely to have been lawyers or academics.” They had not put in time in the civil service trenches as earlier mandarins had done. Foster rightly says that “there was enormous competitive spirit among these people. The game was to get to the key policy areas and come up with the bright ideas.” Clark, according to Foster, came to be seen, “particularly in Alberta, as the epitome of Ottawa’s anti-business, interventionist bias, and as a key force in the resurgence of the fiercely nationalist sentiment.” In Calgary he assumed “a notoriety never before accorded any public servant.” His thesis on Tanzanian socialism was “photocopied and passed around Calgary’s Petroleum Club, with ‘selected quotations’ highlighted in an angry yellow, felt-tip pen.” Peter Foster, The Sorcerer’s Apprentices: Canada’s Super-Bureaucrats and the Energy Mess (Toronto: Collins, 1982), 52, 74–75.

  Interestingly the backroom “socialists” of Ottawa became very successful in corporate boardrooms. Clark later became the chair and CEO of the TD Bank; Phelps became the CEO of Westcoast Transmission and chair of Duke Energy in the United States (after he engineered the sale of the Canadian company to the American energy giant); and Cohen became CEO of Molson and a director of many other companies, including the TD Bank. Their obvious skills transferred easily out of government and are testimony to the outstanding young people drawn to Ottawa in the early years of Trudeau’s government. While Trudeau and Pitfield’s fascination with academic theories and system designs may not have translated well into the practice of government, it attracted many young intellectuals who shared the contemporary belief that government could be made better.

  * The complicated formula required approval by the Senate and the House, the legislature of every province with 25 percent of the population, two of the western provinces with half the population of the four in the West, and two of the Atlantic provinces with half the population of the four in the East. An alternative would be a referendum, with the overall approval of the population and a majority in each of the provinces with 25 percent of the population, and again of two of four provinces in both the West and the East. There were further details, but the provinces were fearful of the referendum option, and the federal government was concerned about the complications in the system.

  * Trudeau sent MP David Smith, a descendant of British Prime Minister Sir Henry Campbell-Bannerman, to lobby the British parliamentarians. Once arrived in London, Smith learned that the work would have to be completed with the Lords by August 12, when the grouse season began. Interview with Trudeau ministers, Dec. 2, 2002, LAC.

  * Election rumours were rampant in the fall as unilateral patriation seemed possible. Governor General Ed Schreyer was one source of the musings. He told the press in January 1982 that he would have called an election “if all the provinces were strongly opposed to patriation and Trudeau went ahead and asked London to pass the bill.” Trudeau and his staff were incensed. Trudeau’s aide Ted Johnson wrote “intolerable” on a copy of the interview and added the note for Trudeau that Schreyer was “1. Wrong 2. Shouldn’t talk. 3. Would have been breaking a confidence.” They considered asking for his resignation, even though he had been a Trudeau appointee. After a phone call on the matter, Schreyer agreed to a “complete withdrawal” of his remarks. These pencilled notes are in TP, MG 26 019, vol. 165, file 35, LAC.

  CHAPTER SIXTEEN

  HARD TIMES

  On the evening of November 5, while the anglophone premiers celebrated in Ottawa and René Lévesque returned, bitter and rejected, to Quebec City, Pierre Trudeau flew to New York to accept the “Family of Man” award for “international excellence.” This award had first been won by John F. Kennedy in 1960, and then by Lester B. Pearson in 1965—the only other Canadian to be so honoured. Trudeau’s departure marked the end of his intense focus on the Constitution and the beginning of his concentration on international issues, just as the Cold War was entering a new chill. Foreign policy and the economy dominated Trudeau’s final years in office, and the context in which he approached those challenges was for him less certain than the constitutional terrain he knew so well.1

  In spite of Trudeau’s new emphasis, the constitutional wars did not end with the champagne and the tears spilled that evening in early November 1981. Trudeau basked in praise from English Canadians, particularly in Quebec, where his adamant defence of minority language rights won plaudits from journalist L. Ian MacDonald, a future senior aide to Brian Mulroney. Writing on November 7 in the Montreal Gazette, MacDonald said that Trudeau’s success in protecting minority rights was “the crowning achievement of his career, the end of an unwavering path he has followed since he began writing in Cité libre that his people were confining themselves to Quebec when all of Canada was their rightful home.” At the end of the first ministers’ conference, Ontario’s William Davis, a frequent critic, praised Trudeau’s willingness to compromise: “You have demonstrated what is essential in this country: the ability to compromise and to accept the diversity and the views of so many others,” he said. Concession was not a quality often associated with Trudeau, but it had marked his recent constitutional course. The result of his flexibility, he declared as he left for New York, was “a charter of which Canadians can be proud and of which, I hope, we will still be able to say it is, probably, the best charter in the world.”2

  Yet the first major academic study of the events of November 1981 opted for the title And No One Cheered. It reflects the second thoughts that came quickly after the champagne ran out. Conservative leader Joe Clark initially withheld his support because of the Quebec government’s strong opposition, though pressure from the Conservative premiers—the midwives of the “deal”—quickly caused him to end his hesitation. But many others were unhappy. Constitutional historian and former Liberal senator Eugene Forsey, who had left the NDP to follow Trudeau in the sixties, fulminated against the accord in one of his characteristically angry letters to a newspaper editor:

  The amended Charter of Rights and Freedoms just won’t do.

  The provinces have shot it full of holes: great, big, gaping holes.

  First, what the charter rightly calls “Fundamental Freedoms”—freedom of conscience, freedom of thought, freedom of speech, freedom of peaceful assembly, freedom of association—are put at the mercy of 10 provincial legislatures, which can override them at will.

  The same applies to “Legal Rights”—such as the right to habeas corpus, the right to public trial, the right to counsel, the right to be secure against unreasonable search and seizure, the right not to be arbitrarily detained or imprisoned.

  Forsey went on to argue that the rights “will vary from province to province in a legal crazy-quilt.” He pointed to two groups particularly harmed by the accord: women and Aboriginal peoples. In the case of women, the equality rights that had been accepted by the premiers in April had been “disembowelled” by the notwithstanding clause. Moreover, the two clauses that had protected Aboriginal rights in the proposed constitution were now missing—in particular, the proposed section 34, which had included “Métis” within the definition of Aboriginal peoples. Like Forse
y, women and Aboriginals had already noticed their losses, and their outrage quickly swept away virtually all other discussion of the Constitution and ended the premiers’ celebrations.3

  The Women’s Ad Hoc Committee on the Constitution, with the full support of Judy Erola, the secretary of state responsible for the status of women, soon made an impact on MPs throughout the land. Erola, a feisty and independent minister, organized the opposition from her own office. After the November 5 agreement, she told her colleagues and the prime minister that there was “not much point in being minister for the status of women when women have no status in the country.” Trudeau seemed stunned by the reaction, claiming in the House that he did not know whether the override clause would affect section 28, where equality of the sexes was guaranteed. But feminists pointed out that ignorance was not an excuse, and his reply betrayed at best an inattention to the political force of the women’s movement in the eighties. The premiers were also astonished by the strength and spontaneity of the protest, and they quickly fell in line, with Saskatchewan’s cautious socialist, Allan Blakeney, being the last to agree. Chrétien recalls that he warned Roy Romanow, the Saskatchewan attorney general: “I’m about to make a speech in the House of Commons. If you give in [on women’s rights], I’ll say your boss is a great guy. If you don’t, I’m going to sock it to him.” The women, however, already had. In the words of Penney Kome, the historian of the feminist challenge to the November 5 draft of the charter, the women “took over” section 28 and made it Canada’s equal rights amendment. And their efforts made a difference. Conservative critics of the court such as Calgary’s Ted Morton point to the strengthened section 28 as the reason why women’s lobby groups won not only many charter cases but also profound changes in the “policy status quo.” In short, their efforts changed Canadian policy in areas such as abortion, pornography, and job discrimination.4 Their successful protest taught women that men in suits had made the “flawed” Constitution and that, in future, Constitution making must not leave them at the sidelines.

  In contrast to Canadian women, Canadian Aboriginals had focused their lobbying in London, where their colourful, traditional costumes captured the attention of British politicians and journalists. While romantic and sometimes moving in their appeal for the Queen’s protection, based on the lofty promises of British monarchs more than a century before, the protest accomplished little, simply because London no longer mattered. Indeed, the Kershaw committee’s embrace of their cause in the British Parliament probably hurt their protest in Ottawa or, more accurately, in the provincial capitals, where the call for “Aboriginal rights” became a target for politicians worried about what such rights actually implied. On this issue the three western premiers, despite their political differences, fretted in unison about what these rights meant for land claims, treaty rights, and taxation, although Blakeney did call for attention to Aboriginal rights during the process.* Since the failure of the White Paper dealing with the Indian Act in his first government, Trudeau had largely ignored the Aboriginal question, not so much from lack of interest as because other items took priority.

  The meaning of collective “rights” always troubled Trudeau because of its implications for Quebec and, in addition, his own carefully constructed notions of the primacy of individual rights. Meanwhile, Ed Broadbent faced his own opposition to the charter on traditional grounds from Allan Blakeney and others within the New Democratic Party, including British Columbia MP Svend Robinson and the party’s left, who demanded greater recognition of “rights.” He therefore approached Trudeau personally to urge him to consider that Aboriginal rights be included in the charter. Trudeau asked him, in Socratic fashion, what “Aboriginal rights” meant, and Broadbent replied with a history lesson about democratic rights in general. At the end of the interview, the two products of the London School of Economics, thoroughly irritated with each other, parted with the issue unresolved.5

  The strongest objection to the extension of Aboriginal rights came from Alberta’s Peter Lougheed, although an exchange between Chrétien and Roy McMurtry, Ontario’s attorney general, leaked on November 19, revealed that disquiet extended beyond the West. Ontario, the letter declared, was worried about the impact that recognition of Aboriginal rights would have on property rights and the “unfairness, disruption, uncertainty and divisions” that such recognition would bring to Canadian society. Premier Davis, ever cautious, quickly dissociated himself from these sentiments, although they seemingly reflected earlier private conversations. But Aboriginal leaders would not be put off. In British Columbia, Premier Bennett’s Social Credit convention was disrupted by militant Aboriginals demanding justice, while thousands of Aboriginals marched on the Alberta legislature, seeking an audience with the premier. Lougheed resisted tenaciously but, isolated in his opposition, he finally gave in. The Canadian press, astonishingly, missed the irony in his opposition to the extension of Aboriginal status to the Métis people: Lougheed’s great-grandmother, Mary Allen Hardisty, was Métis, and his great-uncle, Senator Richard Hardisty, had nobly fought for the rights of the Métis in the Northwest a century before. In the end, the Constitution Act was revised, so that section 35 (2) of the final draft included the “Indians, Inuit, and Métis peoples of Canada” among the “aboriginal peoples of Canada” whose “existing aboriginal and treaty rights” were “recognized and affirmed.”6

  Women and Aboriginals gained new clout in the patriated Constitution but, René Lévesque complained, the province of Quebec lost power. There can be no doubt that Lévesque’s anger was genuine. He believed that Lougheed had become his friend and ally,* that the “gang of eight” had reached an agreement to hold together against Trudeau’s centralizing reforms, and that the patriation plan was fundamentally illegitimate. The cascade of losses and disappointments that followed during those early days in November shattered his sang-froid and confidence. His wife, Corinne Côté, remembered that, when he called her that terrible night of November 5, “I had never encountered him in such a state…. He had never been so cheated, and in a way that was thoroughly Machiavellian. He was broken. I believe that René died for the first time after the night of the long knives.” When Lévesque left Ottawa that evening, he had declared that three aspects of the accord were unacceptable: the refusal of fiscal compensation for provinces that “opted out” of constitutional amendments; the section on mobility rights, which, in his view, placed limits on the powers of the Quebec legislature; and minority education rights, which, he thought, also diminished the power of the legislature. Over the weekend the rhetoric of meetings in Quebec City added new ingredients to the mix as he poured out his anger to his Cabinet, and this made any changes even more unpalatable to the other provinces and the federal government. The well-informed Claude Charron recalled that Lévesque’s fury against the “English” was so great that he said he wanted to “kill” them. That was pure bluster, but he could not forgive the “manipulative and treacherous” Trudeau, who had told Lévesque bluntly when he plaintively asked for a referendum after the other premiers accepted the accord: “The people have spoken; you have lost.”7

  And lost he had. Lévesque soon learned through a quickly commissioned poll that the “people” of Quebec would not oppose the proposed patriation and chartering side in a referendum on the Constitution and, moreover, would defeat the PQ if an election was held on the issue of sovereignty. The support for separatism in the aftermath of the Ottawa conference had risen, but not enough. This unwelcome news surely fuelled Lévesque’s frustration: it exploded in his address to Quebec’s National Assembly on November 9, in which he condemned the new Constitution, concocted in “a night of deceit” during which the English provinces and the federal government had betrayed Quebec. He accused them of treating Quebec solely as “a force to contain,” not as a partner in the negotiations. In this speech Lévesque also focused on Quebec’s loss of its veto, and on November 13, he embodied his rapidly increasing objections to the revised Constitution in a resolutio
n he placed before the National Assembly.

  When the resolution came to a vote on December 1, the Liberals did not support the motion. Ryan stated that there could still be an agreement, and in any case, the Constitution was an improvement on what had existed before. The following day, the House of Commons in Ottawa voted on the constitutional resolution that included the changes relating to Aboriginal and women’s rights and two changes affecting Quebec, which the federal government had inserted after discussions with Ryan. One of these changes related to section 23 1(a), which would have limited Quebec’s ability to stream immigrant children into French schools. The other permitted opting out with compensation in the areas of culture and education. The House approved the resolution by a vote of 246 to 24, with the MPs singing “O Canada” bilingually as they cast their votes. The French voices reportedly drowned out the English words as the anthem rang throughout the chamber. The overwhelming level of support, notably from Quebec MPs, gave Trudeau confidence that the Charter would endure the challenges it would face in the future as the courts gave it meaning.8

  Lévesque was livid, and his fury only increased as he and Trudeau exchanged a series of letters on these developments. Their personal anger and mutual suspicion burst through the letters they wrote. Trudeau taunted Lévesque about the loss of the veto, and in a long public letter on December 1, claimed that Lévesque had already given up the veto when the gang of eight was formed in April 1981. He traced the recent legal history and concluded with sarcastic familiarity: