Trudeaumania
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After being confronted by reporters at the Canadian Bar Association conference, Trudeau knew a political trap when he saw one. He remained in Ottawa and dispatched his top advisers Jean Beetz, Carl Goldenberg, and Marc Lalonde to serve as his eyes and ears on the ground in Toronto.
In public, Lester Pearson continued to put the best face he could on national unity. In a year when the world had beaten a path to Expo 67, the prime minister had no desire to sound alarmist. He met with Premier John Robarts on December 1, 1967, and enjoyed an amicable debriefing on the Confederation of Tomorrow conference. Robarts reported that premiers Daniel Johnson and Ernest Manning had departed Toronto in a more conciliatory frame of mind than when they had arrived, and thus the future of constitutional negotiations looked promising. The genial Pearson played into Robarts’s optimism, telling the premier that “we should capitalize on the momentum and good will of Toronto, and transfer progress to the federal-provincial front.”110
Among his top ministers, however, the prime minister was far less sanguine. In a “secret” cabinet memorandum entitled “Preparations for Constitutional Discussions,” Pearson recounted, in detail, his steadily deepening anxiety about national unity over Canada’s Centennial Year. “A full constitutional confrontation in the course of 1968 and after is probably unavoidable,” he concluded ominously.111
Trudeau pored over the prime minister’s twelve-page memo and made copious marginal notes.112 With only one or two caveats, he was pleased with what he read, and for good reason. Pearson had finally cast off his own doubts and moved decisively towards Trudeau’s tough-minded position on Quebec. (It is even possible that the prime minister had by then decided to retire and leave the next round in the constitutional debate to his successor, whom he hoped would be a French Canadian.) “Time is running against National Unity and the Federal Government,” Pearson warned. No longer content to “avoid being drawn into any federal-provincial negotiations,” the prime minister now perceived that the feds had to act decisively “before provincial positions become crystallized.” In particular, “there is a serious risk that Quebec [could] endorse some new principles without any regard for whether they are negotiable.” What was needed, Pearson asserted, was a “Constitutional Bill of Rights” that would frame the entire constitutional debate and “put the provinces in the position of having to react.”113
The words were Pearson’s, but the ideas were mainly Trudeau’s. There would be no more hedging, no further concessions to accommodationist voices in the federal Quebec caucus. The prime minister knew that his minister of justice had a few items to clear off his desk over the last few weeks of Canada’s eventful Centennial Year. But the scene was now set for a showdown with the government of Quebec, with Pierre Trudeau cast in the role of gunslinger.
CHAPTER FOUR
FROM CELEBRATION TO SURVIVAL
One of the items cluttering up Pierre Trudeau’s desk in December 1967 was a major revision to Canada’s divorce laws.
According to a central tenet of the Trudeau myth, it took a determined forty-eight-year-old bachelor to drag Canada’s divorce law kicking and screaming into the modern era after nearly a century of nervous neglect. But what is striking in retrospect is the extraordinary prudence with which Trudeau steered an unremarkable bill into law. Striking as well in this context, and therefore worth repeating, was his capacity for compartmentalization. An enduring element of the Trudeau enigma today—although a fact little known to his contemporaries, apparently—is that Lester Pearson’s liberal justice minister was a devout Catholic who could not personally countenance divorce. (When Trudeau’s own marriage broke down in the 1970s, his departing wife, Margaret, had to petition for divorce in a manner prescribed by the law that Pierre himself had written. The irony could not have escaped her.)1
The question before Canadians in 1967 was whether the existing legal grounds for divorce—what Trudeau himself called the “traditional marital offences” of adultery, sodomy, bestiality, rape, homosexuality, and physical or mental cruelty—remained sufficient. Trudeau’s view, and the view of the vast majority of Canadians who had appeared before the House of Commons/Senate joint committee on divorce, was that they did not. The time had long since passed, almost everyone agreed, when a bad marriage should be granted dissolution only when one spouse could prove the guilt of the other. What was needed was language acknowledging that couples themselves knew best when their differences were irreconcilable and their marriages unsalvageable. Trudeau thus proposed that “marital breakdown” be added to the list of grounds on which a divorce petition could be sought. Whether this addition was a radical departure from the existing law, or merely a minor modification of it, would turn out to be open to debate.
Trudeau tabled his Divorce Act, Bill C-187, for first reading in the House of Commons on December 4, 1967. Knowing that MPs had not yet had the opportunity to read the twenty-seven-clause bill, he had the advantage of describing it in broad strokes and extolling its virtues. The challenge in drafting the new legislation, Trudeau began, was to codify what, exactly, the concept of marital breakdown meant. Since the courts obviously could not be left to themselves to decide when a marriage could not be salvaged, the bill contemplated five criteria: the long-term imprisonment of one spouse, gross addiction to alcohol or narcotics, the disappearance of a spouse for more than three years, the refusal (or inability) of one partner to consummate the marriage within a year, and desertion.
Anticipating that his liberalized divorce law might get a rough ride from Canadian conservatives, Trudeau adopted the obvious strategy. He positioned himself as a conservative. He was not ten minutes into his introductory remarks before he had paid sentimental homage to the sanctity of the Canadian family and twice boasted that his bill had earned the approval of “many of the Christian churches.”2 Indeed, as Trudeau would point out repeatedly over the course of the debate, his bill did not go nearly as far in the direction of liberalizing the law as many of Canada’s religious leaders would have liked! In their briefs to the joint committee, the United Church of Canada, the Anglican Church of Canada, and the Canadian Jewish Congress had advocated discarding the old grounds for divorce wholesale and replacing them with the single, all-encompassing ground of marital breakdown. “While recognizing that this viewpoint has much to commend it,” Trudeau told the House, “the bill has not been prepared on this basis, but retains the traditional marital offences as grounds for divorce.”3
Trudeau’s cautious, pedantic, and at times obsequious defence of the bill was masterful. Tory leader Robert Stanfield told the House that his party fully supported reform of the divorce law and looked forward to reading the bill. New Democrat Andrew Brewin, who sat on the joint committee, congratulated the minister of justice for having the courage to modernize an antiquated law but then rebuked him for playing it safe. Trudeau, said Brewin, had had a “clear-cut choice between two basic theories in respect of the dissolution of marriage.” He could have affirmed “divorce by consent” but instead saddled Canadians with the same old “divorce by judicial decision.”4 Trudeau asked Brewin, a lawyer, whether he thought there was any “legal propriety” in asking the courts to assess marital breakdown. “I think not,” Brewin responded. “Once the marriage has broken down, then I suggest the marriage is dead and it is the duty of the court to dissolve it.”5
The next evening, December 5, Bill C-187 progressed to second reading. Trudeau spoke from a prepared text for roughly an hour, discussing the history of Canadian divorce law, jurisdictional issues (including provincial jurisdiction over legal separation), and what he believed his new bill could accomplish. He spoke most eloquently on one principle, however, which had implications well beyond the divorce law: that “theological or sacred” concepts could no longer be legislated in multi-ethnic societies like Canada. “I think one of the fundamental tasks we must achieve in this parliament is to avoid mixing the sacred and the profane,” said Trudeau. “We must realize we are living in a pluralistic society, and ev
en though some laws may be repugnant to the morals of individual members they must realize that we are all here to legislate not our own personal morals upon the country but to seek solutions to evils which arise in a civil society.”6 He reiterated that the reform of Canada’s divorce code had been undertaken with the greatest respect for Canadians’ religious convictions. “This is merely a permissive law,” said Trudeau. “It is not dealing with moral beliefs. Indeed I think it is theologically acceptable, even to the most stringent of Christians.”7
In response to the criticism that retaining the traditional marital offences left a needless burden on Canadian couples, Trudeau made three points. First, if marital breakdown were the sole criterion for granting a divorce, Canada would require a new system of courts, which would take years for Ottawa and the provinces to negotiate. Second, he affirmed, under the new law, the courts would enjoy a good deal of leeway. “If honourable members read the law very carefully,” said Trudeau, “they will see that some of the sections are quite wide.”8 His third argument was the cleverest. What if conservative judges used a vague law to obstruct the granting of divorce altogether? “We did not want a situation to develop where some courts would not be granting divorces in any and all cases,” Trudeau assured the House. “We wanted to put in our law a direction to the courts that they must grant a divorce when certain evidence of breakdown or of offences exist.”9
All in all, it was a compelling defence. The bill received unanimous approval in principle on second reading, which Trudeau correctly read as evidence that he now had the upper hand.
Final debate on Bill C-187 began on December 14. For four days, MPs weighed in, and Trudeau simply listened (or at least appeared to do so). Not until the late afternoon of December 18 did he re-enter the debate, thanking MPs for their input and responding methodically to their concerns. With passage of the bill now assured, an emboldened Trudeau emphasized how innovative and progressive it was. “The bill itself speaks of breakdown and this is more than lip service,” he bragged. “This is a completely new approach in our law, of course.”10
The final day of the debate, December 19, was the longest and by far the most tedious. Clause by clause, hour after hour, Trudeau stood in the House fielding questions and deflecting proposed amendments. Even as the conversation went back and forth and around in circles, he evinced a degree of forbearance entirely at odds with his later reputation as a haughty and sometimes hot-headed parliamentarian. There was no trace of the connerie brawler here. When the debate ended, at 9:47 p.m., Bill C-187 passed unanimously and without substantive revision. All members of the House pounded their desks in approval and rose to give Trudeau a standing ovation. Bill C-187 would receive royal assent on February 1, 1968, and become law three months later.
For the minister of justice, the entire performance was a triumph. “Mr. Trudeau handled himself coolly throughout the debate,” observed Globe and Mail correspondent Geoffrey Stevens, no doubt relieved to finally exit the spectators’ gallery.11 On editorial pages across Canada, Trudeau’s pithy phrasing—we must “avoid mixing the sacred and the profane”—was commended almost without reservation. Some pundits, following Andrew Brewin’s lead, took Trudeau to task for not pushing his reforms far enough. But Trudeau was quick to respond that the government had accomplished as much as it could, given the constraints of Canadian federalism. “I think we have gone as far as we can under this law,” he told the press. “That is to say, we have gone as far as we can without embarking on a prolonged and involved process of federal-provincial consultation.”12 (He was correct about this. When asked to comment on Trudeau’s new law, Quebec premier Daniel Johnson stated that he thought divorce should become an area of provincial jurisdiction.)13
Marc Lalonde had cautioned Trudeau early in December 1967 that he was taking a huge gamble in reforming Canada’s divorce law. But he noted as well that the potential upside was enormous. If he got his bill passed, the justice minister would be credited with taking the lead on what could have been an ugly, divisive, and career-ending national debate.14 Lalonde was proven right. Trudeau got credit not only for defending his own convictions but for demonstrating statesmanship. He had correctly gauged Canadians’ evolving views of the private and public spheres, he had steered the divorce debate with consummate professionalism, and, above all, he had won the day. “Justice Minister Pierre Trudeau grappled with a huge and hoary issue,” observed the Globe and Mail. “By urging members of Parliament not to impose on the country their own religious, moral and ethical convictions, Mr. Trudeau expressed a growing—and healthy—conviction that the state has no business legislating individual morality.”15
Trudeau gained momentum. Two days after his triumph on the Divorce Act, he tabled Bill C-195, an omnibus bill designed to update some of the most controversial aspects of the Canadian Criminal Code (alongside less contentious changes to Canadian penitentiary, parole, and customs law).
Work on the seventy-two-page bill had begun before Trudeau was named justice minister, but by the time it entered public debate, Canadians saw it as his legislation (and do still). By agreement with Opposition parties, he introduced the bill for first reading in the House of Commons on December 21, thus allowing MPs the Christmas recess to familiarize themselves with its contents.16 What this timing meant in practical terms was that the contents of Bill C-195 would be debated not in Parliament but in the media. Perhaps not surprisingly, two aspects of the omnibus bill—the legalization of therapeutic abortions and the decriminalization of homosexuality—drew the most coverage. In any other context, several other elements in the bill—the abolition of capital punishment, the tightening of gun control laws, the creation of government-run lotteries, and the mandating of roadside Breathalyzer tests—would probably have received far more public scrutiny.
Lester Pearson first raised the matter of reforming Canada’s abortion law in February 1967, stating that he hoped it could be achieved within a year.17 The existing abortion statute dated from 1869 and was draconian. Anyone procuring an abortion could face life imprisonment, a punishment that had inevitably driven the practice underground.18 The law was also ambiguous. As Trudeau himself noted, section 209 of the Criminal Code allowed abortion in cases where the life of the mother was at risk, while sections 237 and 238 forbade abortion altogether. (Journalist Michael Gillan discovered in December 1967 that of the roughly one hundred therapeutic abortions performed in Toronto hospitals over the previous year, the great majority were performed on women whose lives were not at risk.)19 Under pressure from members of the medical profession and various women’s groups—and in the face of mounting evidence that tens of thousands of illegal abortions were being performed every year with sometimes lethal consequences for Canadian women—the public debate had shifted over the course of the 1960s. The health of pregnant women, broadly defined to include mental as well as physical health, became the pre-eminent concern. Medically sanctioned “therapeutic” abortions thus represented a cautious first step towards women’s reproductive freedom.
Pierre Trudeau knew, of course, that revising the abortion law would be a political minefield—worse even than reforming the divorce code. At a June 1967 press scrum, when the Breathalyzer reforms were making headlines, a journalist had asked him about his intentions regarding abortion. Caught off guard, Trudeau replied candidly that he was not yet even certain that he could proceed. “It is a very complex problem, abortion,” he mused. “A lot of the suggestions made about abortion are well-meaning, but not very operational.”20 Limiting abortion to cases of rape or incest looked good in theory, Trudeau noted, but what if such constraints led women to trump up charges? The normally loyal Toronto Star eviscerated Trudeau for this suggestion. “This is legalism run mad,” fumed the Star. “The Criminal Code should be amended to permit a doctor to perform an abortion on a woman at her request, if he is satisfied, on reasonable grounds, that her pregnancy is the result of rape or incest. It is utterly repugnant that a girl should be forced to bear a ch
ild conceived under such circumstances. These victims should not be denied relief by the kind of legal technicalities dreamed up by Mr. Trudeau.”21 Pro-choice groups, meanwhile, demanded that the minister of justice grant women complete reproductive freedom.
Trudeau got the message. When he rolled out his omnibus bill, he announced that abortion would now be lawful in instances where a hospital abortion committee deemed it essential to the health of the mother. “I don’t think lawyers are as competent as doctors to judge in these matters,” said Trudeau, adding that the key word “health” could be interpreted by doctors to include a woman’s mental state.22 This middle-of-the-road reform was bolstered by the interim recommendations of the Commons standing committee on health and welfare, which had been published just two days earlier. But as the chair of that committee, Dr. Harry Harley, was forced to concede, debate had been so fractious (and the in-camera vote so close) that no consensus could be reached. Like the views of the many Canadians who had appeared before the committee or submitted briefs, MPs’ opinions ranged from wanting to ban abortion outright to granting women abortion on demand. Trudeau shared Harley’s belief that permitting therapeutic abortions under medical supervision was the best compromise that could be achieved in the current climate. “We’ve gone about as far as we dared,” said Trudeau.23