The Constitution Act, 1982

April 17, 2012 by staff 

The Constitution Act, 1982, Margaret Thatcher, with her husband Denis, addresses the press for the last time on Nov. 28, 1990. Thirty years ago, on a warm spring day in April, the Constitution Act, 1982, was officially proclaimed and the Charter of Rights came into being. There was a grandiose ceremony on Parliament Hill, overshadowed only by the absence of René Lévesque and by a thunderstorm mixed with hail that struck in the middle of the festivities.

There was another notable absence, though. Margaret Thatcher, the British prime minister, had declined Pierre Trudeau’s invitation. She’d supported his patriation package all along, despite the initial strong provincial opposition and the reluctance of many parliamentarians in Westminster. Yet the “blessed Margaret,” as Trudeau once described her, considered the Charter to be an embarrassment and the celebration not worthy of attending. The Falkland Crisis provided the perfect excuse to avoid the trip.

Thatcher’s reaction was representative of the sense of uneasiness that existed at the time in British political circles. While ministers, MPs and peers wanted Canada to be completely independent, many were troubled by the fact that they were asked to enact a bill of rights that went against the principle of parliamentary sovereignty. Their doubts were warnings about what awaited Canada on the eve of the Charter era.

Trudeau’s strongest argument in favour of including a Charter in a repatriated constitution was that Canadians would regain their freedoms. How would this be achieved? By virtue of the fact that judges would now be able to interpret the general provisions of the Charter and, in the name of fundamental rights, strike down statutes enacted by the people’s elected representatives.

Margaret Thatcher believed that this approach was wrong. In one of her first speeches as prime minister, she explained that her government was determined “to return to one of the first principles which have traditionally governed our political life the paramountcy of parliament for the protection of fundamental rights.” By that, the Iron Lady meant two things. First, rights are not absolute in a democracy. For example, a man cannot yell fire in a crowded theatre in the absence of a blaze and then justify his action in the name of freedom of speech. There is always a limit to individual rights. Thatcher thought it essential that elected politicians should have the power to draw the line, not judges. Second, she was convinced that parliamentarians were better at defining and protecting rights through vigorous debates, arguments and counter-arguments, while letting the people decide, at election time, which party is the best defender of their liberties.

This is the system that existed in Canada before 1982. While working well, it was not perfect. The violation of the Japanese minority’s rights during the Second World War is an example of a tragic failure. But Trudeau’s Charter of Rights has failed to improve things. Just a few years ago, in the middle of another war, the war on terror, judges neither prevented Maher Arar from being sent to Syria to be tortured, nor were they able to bring him back to the country. The threat of a legal procedure under the Charter did not seem to matter a great deal for the government. But when Arar’s situation provoked a storm in Parliament that then triggered an outcry from the public, Ottawa suddenly managed to get him out of Syria, officially apologized and eventually paid him $10-million.

Hence Thatcher correctly foresaw that the Charter would fail to improve respect for human rights in Canada. Others were skeptical too, including John Ford, the British high commissioner, whose sister and brother had adopted Canada as their country. Upon leaving Ottawa in 1981, he sent a warning to London about the dangers of the Charter in his final despatch. “If enacted, Trudeau’s constitution seems bound to lead to an endless and divisive litigation.” For him, Canada was among “the most over-governed communities in the world,” and he thought there was a sense of distance between Ottawa and ordinary Canadians. To solve the problem, he said, Trudeau was unfortunately proposing “a legal framework for unity, with courts to enforce it and a federal government strong enough to impose unifying policies.” This approach suited “the bureaucrats of Ottawa, who have a vested interest in the aggrandisement of federal power.” It also appealed “to the minds of academia and media, and, particularly, to the anglo-francophones of Montreal, who see themselves as the real elite,” but it was detrimental to the interest of Canadians in general. “The realization of the Trudeau dream,” Ford predicted, “could become the creation of a divisive and unacceptable procrustean bed to alienate them still further from the Ottawan bureaucracy; and multiculturalism rather than biculturalism has already become a vogue word of the government.”

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