Canada's Constitutional Wrangle

...WOOING THE PROVINCES Canada's Constitutional Wrangle BY HAROLD M. WALLER PIERRE TRUDEAU MONTREAL AFTER A HECTIC few seasons politically, Canada seemed to be quieting down toward the close of last summer In the 1979 and 1980 Federal elections Prime Minister Pierre Elliot Trudeau went through a revolvmgdoor, ending up in of fice lora term that runs until 1985 In a similar pattern, Quebec Premier Rene Lev-esque—whose thinly disguised substitute for secession labeled "sovereignty-association" failed badly in a 1980 provincial referendum—recaptured a thumping parliamentary majority in last spring's general election Yet when all the electoral dust of a turbulent 24 months settled, the two old combatants, Trudeau and Levesque, were still challenging each other—this time over a new national Constitution Thus the situation here was not essentially different from what it had been when Trudeau came to power in 1968 (although the threat of Quebec separatism is clearly much more credible now that the Parti Quebecois (PQ) controls the province) One can argue that the Prime Mimster's mam objective through the years has been to modernize the Canadian constitutional system and also ensure the allegiance and full involvement of French Canadians Levesque, on the other hand, has sought to move Quebec away from identification with Canada and toward autonomy, for him, the constitutional debate was a means to this goal Consequently, Levesque joined other provincial premiers in a concerted effort to wrest power from Ottawa Trudeau, of course, struggled valiantly to preserve Federal hegemony, he believed vigorous action by the national government was necessary to undercut separatist sentiment According to Trudeau, the influence of Quebecers in his own administration highlighted the opportunities available within Confederation Levesque apparently agreed with this analysis, at least implicitly, and strove to keep Quebecers preoccupied with their own province so that Ottawa would become increasingly irrelevant Each man has had partial successes Levesque has seen Quebec become more self-reliant, even if the claim that it "is not so much a Canadian province as a burgeoning nation-state" (which appeared in a Business Week advertisement last year) is premature Trudeau will soon have his Constitution, but has had to swallow his "separatism is dead" pronouncement of some vears ago The ultimate verdict on whose gains have been greater cannot be rendered until the continuing Quebec mibrogho is resolved—and that may never occur It is entirely possible that Quebec will formally remain part of Canada and nonetheless have enough freedom to make the independence argument beside the point Meanwhile, rumors and speculation abound that Trudeau, or Levesque, or both may leave public life within a year or two—Trudeau because his work in securing a Constitution is done, Levesque because he may lose control of his party Their political calculations are complicated by the dismal state of the Canadian economy, currently mired in a recession marked by over 8.5 per cent unemployment and inflation in excess of 12 per cent The inflation can in part be laid at the door of the energy pricing agreement concluded with Alberta last year After many years of holding prices well below the opec benchmark, Trudeau and Energy Minister Marc Lalonde succumbed to the relentless pressure of Alberta Premier Peter Lougheed and consented to a five-year program of steady and substantial increases toward the opec level Albertans clearly believe that they should have no less opportunity to become wealthy than their Arab counterparts The situation was exacerbated for the approximately 25 per cent of Canadians who live in Quebec when the provincial government, desperate for additional revenue, increased the tax on gasoline at the pump by about the equivalent of 20 cents per U S gallon Barely a year ago, Americans were flocking across the border to fill their tanks' THE GRIM economic news notwithstanding, exactly how Trudeau achieved his constitutional victory has been the major focus of attention in recent months Canadians have long wanted to patriate their Constitution—now an act of the British Parliament—and extricate themselves from the embarrassment of having to petition Westminster to incorporate any amendments Until recently, though, the general agreement that a self-respecting nation should have its own basic document could not overcome an inability to agree on an amending formula The procedure would replace what was understood to be a requirement that the premiers of the 10 provinces consent unanimously to changes proposed by Parliament Trudeau made the realization of a Constitution a priority He came close in 1971, only to be foiled at the last minute when Quebec, then under a Liberal government, pleaded special constitutional needs as the homeland for Canada's French minority In practice the province had begun to go its own way m a number of policy areas, but Trudeau resisted attempts to elevate its self-image to a constitutional principle It has been his considered view that Quebec will do best in Confederation as one province like the others, and that equal treatment nationwide for French Canadians can be achieved through Federal intervention The election of the separatist PQ in 1976 was a blow to Trudeau's plans, since Levesque and his followers had no interest in renewing Canadian federalism On the contrary, they wanted to justify Quebec's leaving Canada and declined to be party to any change that might benefit the country as a whole Of necessity, constitutional discussions had to be relegated to the back burner until the future of the province was clarified Trudeau seized his opportunity in 1980, promising Quebec voters that if the anti-Levesque "No" forces won the "sovereignty-association" referendum, he would revive the constitutional talks and make every effort to bring them to a successful conclusion When the voters rejected the Levesque proposal, the Prime Minister assembled the 10 provincial premiers, none of whom belongs to his Liberal Party, for earnest negotiations They discussed patria-tion, a durable amending formula and also a Charter of Rights, similar to what Americans would describe as a bill of rights The Charter was most important to Trudeau, for Canadian practice left most of the responsibility for the protection of individual liberties, such as language rights, to the provinces Quebec's position after the referendum was difficult politically, because the defeat suffered by Levesque narrowed his bargaining options with the other parties to the negotiations His tactical vulnerability led him to help organize the so-called "Gang of Eight,' all of the provincial premiers except Ontario's William Davis and New Brunswick's Richard Hatfield The group argued that Trudeau's stubbornness, especially his insistence on controversial provisions of the Charter of Rights, was holding up agreement The situation remained static until two major events broke the logjam in the fall of 1981 The first was a Supreme Court advisory decision concerning the necessity for unanimous consent of the provincial premiers on amendments Trudeau and the Federal government had threatened to petition Britain for the patnation amendment with or without such consent The Court attempted to resolve the legality of the move in an opimon that appeared strange when it was handed down last September, but in retrospect seems quite clever This held that though it was technically legal for the Federal government to proceed without unanimity, such action would violate what it called constitutional conventions or practices Yet the justices not only made it clear that provincial consent did not mean the agreement of every provincial head, they did not specify that more than a simple majority was required The decision spurred Trudeau and the premiers to make one last try at resolving their differences At a dramatic meeting in Ottawa in early November, the previous battle lines became surprisingly fluid Then came the second major event Levesque carelessly abandoned his seven allies in the course of bargaining, allowing Federal representatives the opportunity to negotiate separately with them in a late night session The result was that all sides made concessions and the seven premiers joined forces with the Federal government as well as Ontario and New Brunswick, establishing virtual unanimity This left Quebec out m the cold, a situation with serious risks that Trudeau was apparently willing to take because he knew that the constitutional proposals enjoyed grass roots support in Quebec Levesque has denounced the accord, particularly the section on minority language rights and the lack of a veto for Quebec on amendments He has not been able to obscure the fact that he was outfoxed, however, and he has lost credibility In these circumstances, the possibility that his government may eventually defy some provision of the new document and precipitate a crisis seems great The Constitution, which must now be rubber-stamped by the British Parliament, has three mam parts the original British North America Act, a section requiring the consent of no less than seven provinces with at least 50 per centofthepopulationforfutureamend-ments, and a Charter of Rights that includes a controversial clause enabling provincial legislatures to modify its features This last was Trudeau's main concession at the final stage of negotiations Nothing much will change in Canada immediately The new amending formula will permit the initiation of discussions on reshaping the heart of the Constitution—the distribution of powers between the Federal government and the provinces Bui amendments in that area are years away As I or the Charter of Rights, one need only reflect on how long it took American courts to give the Bill of Rights real meaning as a protection of individuals against state governments While the Canadian courts may not take 150 years to get started simply because things move more quickly these days, they have not displayed a penchant for judicial activism in the past The most important short-run impact of the Constitution relates to Quebec, where Levesque's regime has been fanning the smoldering flames of the independence cause Ottawa has again become the target of considerable criticism, a development that aids the separatist objectives of the provincial government Although Levesque made a solemn campaign promise last year to avoid a second referendum during his presentterm, ending in 1986, his calling an early election to push secession cannot be ruled out Recent polls show that if given a clear choice (in contrast to the nebulous sovereignty-association), slightly fewer than 30 per cent of the voters support independence A record level, it is still insufficient to risk an election On the other hand, in a general balloting—unlike a one-proposition plebiscite—the issue can be buried among the many others to be decided, and the separatists have won two elections by stressing "good government ' THE NOVEMBER denouement of the constitutional negotiating process sent shock waves through the ranks of the Parti Quebecois, then preparing for its convention the following month Party activists saw in Trudeau's behavior a confirmation of their suspicion that he could not be trusted, that he was insensitive to Quebec's interests As for Levesque's former allies among the premiers, thev were viewed as plain perfidious To many in the partv, Claude Mor-in and Levesque's policy of etapisrne (gradualism) had led to a dead end Monn, a constitutional advisor turned politician, had devised the unsuccessful relerendum policv and had directed Quebec's strategy in all ol the constitutional negotiations Discredited by events, he decided to retire from politics immediately after qualifying for a very generous pension The party convention, in no mood for compromise, decided that a future provincial parliamentary majority would suffice to authorize a declaration of independence, even without an electoralmajonty (In 1976 the PQ won a majority with just 41 per cent of the vote ) It also discarded the principle of economic association with the rest of Canada as a necessary condition for political sovereignty And it declined to adopt a commitment to protect the rights and institutions of minorities in an independent Quebec The radical stance of the convention was most embarrassing to Levesque, not least because it demonstrated his inability to control his own party Seeking to recoup some of his losses, the Premier held an internal party referendum by mail ballot during January aimed at repudiating the objectionable convention actions Angry militants charged him with contravening party rules He threatened to resign unless the 290,000 eligible voters gave him reasonably strong support From early returns it is apparent Levesque has won, but an analysis of how many voters abstained in sympathy with the radicals remains to be done Whatever the case, we are likely to see further Quebec-Ottawa confrontations Levesque would in fact benefit from a further deterioration of relations between the two capitals His prob-lem is that his flexibility is limited He must keep a provincial government desperately short of revenue on course, hold his party together, and continue to stir up resentment against the Federal government so that at some point he can try again to achieve his elusn e goal—a majontv vote tor independence Even though the constitution will be home by spring, therefore, Trudeau cannot retire with the assurance that he has set Canada on a sate course The troubling question of the place of Quebec within Confederation is perhaps no closer to solution than it was when the Prime Minister came to Ottawa to solve it so many years ago HAROLD M. WALLER a past contribu-tor, is an associate professor of po-litical science at McGill University...