Lester Pearson adopted the same urgent tone, invoking the spectre of Quebec separatism to emphasize the gravity of the conference. “I pray to God we may succeed because it could be our last chance,” he said. “There are now powerful forces, powerfully aided from outside, that would divide us as a people and destroy us as a state. Let us not be deceived by the slogans of those who demand a freedom that will be no greater than we have.”5 The prime minister reiterated that he was no lame duck. He would speak for all Canada at the conference, and he would use his considerable skills as a diplomat to forge a bold new consensus on Canadian federalism. Most of the ideas Pearson would bring to the table, however, were those of the man who would sit Sphinx-like by his side throughout the proceedings, Pierre Trudeau.6
The feds’ objectives were laid out in Federalism for the Future, a forty-nine-page white paper written specifically for the conference and tabled in the House of Commons on February 1, 1968.
This document—the product of months of painstaking work by the minister of justice and his constitutional steering committee—was bound in a black-and-red cover adorned with a maple leaf and the signature of Pierre Trudeau. Its conceptual centrepiece was a “Canadian Charter of Human Rights” designed to enshrine political, legal, and egalitarian rights, as well as linguistic rights, for French- and English-speaking Canadians. The proposed charter was entirely Trudeau’s, of course, and so was its raison d’être. “The division of powers between orders of government should be guided by the principles of functionalism, and not by ethnic considerations,” the document affirmed.7 When Lester Pearson introduced the white paper in the House of Commons, he threw the full weight of his government behind it. “I recommend to all Canadians the acceptance of a Canadian Charter of Human Rights,” he said.8 The English-Canadian media adopted the phrase “Trudeau’s charter” to describe the proposal.
As Pearson and Trudeau knew—and as Canadians have since come to appreciate—the invocation of constitutionally entrenched rights marked a significant departure from British parliamentary tradition. Some Canadians regarded the phrase “supremacy of Parliament” as sacrosanct, and some premiers would cite it, in fact, to stonewall Trudeau’s charter, then and later. As noted above, the Canadian Bill of Rights that was John Diefenbaker’s pride had been passed in August 1960. But as an act of Parliament it applied only to the federal jurisdiction and could be changed or superseded at any time by new legislation. Trudeau’s charter, in contrast, would apply everywhere in Canada and to all Canadians. Since it had constitutional weight, no government could override it without amending the Constitution itself.
As a scholar of federalism, Trudeau believed that national unity would be strengthened (and separatism undermined) if the federal and provincial governments agreed to cede some of their powers to the Canadian people.9 But he also knew, as did his critics, that constitutionally guaranteed rights would move Canada much closer to the American model, in which the Supreme Court serves as the arbiter of citizens’ rights. Such a redistribution of power was entirely appropriate, Trudeau believed, particularly where language rights are concerned. “The U.S. bill of rights is contained in the first ten amendments of the constitution,” he acknowledged. “It’s just written in there that Congress can make no law abridging the basic freedoms. If Parliament or the provinces passed a law abridging, shall we say, equality of the two languages, they just wouldn’t have the power to do so.”10
In the months leading up to the conference, when Trudeau was working to entrench individual rights in his draft charter, he was also intervening forcefully in the work of his steering committee to thwart any deux nations concept of Canada. A remarkable document from his private papers, for example, shows his handwritten annotations on a late-1967 draft “Bill of Rights for Canadians.” The draft, marked “Confidential,” was one of many working documents prepared by Jean Beetz and other constitutional experts in advance of the federal-provincial conference. With several strokes of his pen, Trudeau gutted the preamble’s allusion to a bicultural Canada. The original text read:
THE PEOPLE OF CANADA Recognize that Canada is composed of two linguistic communities sharing a common tradition of democratic practice and fundamental individual rights, and seeking to ensure an equal partnership in confederation;
that all persons in Canada of whichever community possess by right the opportunity of pursuing their individual social and economic advancement free from unwarranted interference . . . .
Trudeau’s handwritten revisions altered the text fundamentally:
THE PEOPLE OF CANADA
Recognize that Canada is composed of two linguistic communities sharing all Canadians share a common tradition of democratic practice and fundamental individual rights, and seeking to ensure an equal partnership in confederation;
that all persons in Canada of whichever community possess by right the opportunity of pursuing their individual cultural, social and economic advancement free from unwarranted interference . . . .
With an additional stroke of his pen, Trudeau renamed the same draft document from a “Bill” to the now-familiar “Charter.”11
On February 1, 1968, with the federal-provincial conference just days away, Peter C. Newman asked Trudeau whether his position on the Constitution amounted to a defence of the status quo. “It is not,” Trudeau replied. “It amounts to fighting for the only thing that can make Canada united—to take the fuse out of explosive Quebec nationalism—by making sure that Quebec is not a ghetto for French Canadians, that all of Canada is theirs.” Trudeau also gave Newman a glimpse of the aloof, take-it-or-leave-it leadership style that had already begun to colour public perceptions of him. “We may not succeed,” said Trudeau, “but I would rather try than let the country break up because the rest of Canada says to Quebec: No, you must stay in your French ghetto. Then I will pack my bags and I will go and live in the ghetto myself.”12
Ivan Head, then a young legal adviser to Trudeau, was asked what his boss really wanted out of the conference. “We are suggesting to the provinces that every person in this country has a right to a high standard of dignity,” said Head. “It’s Trudeau’s view that for the past hundred years the provinces and the federal government have been too concerned with squabbling over taxes. They haven’t been concerned enough about trying to decide what the purposes of Canada are and how can we make it a swell place for everybody to live in.”13
Making Canada a swell place was a tall order, as the justice minister and his advisers well knew. Under the terms of the British North America Act, Trudeau’s charter would require the unanimous consent of the federal government and the provinces to become law—unless, that is, a different amending formula could itself be negotiated. Premier Daniel Johnson was already on record as saying that his government would not support Trudeau’s plan to make a federal charter the precondition of constitutional reform. On January 19, Quebec’s brief to the constitutional conference was leaked, revealing that the premier’s agenda had not changed since the interprovincial meeting in November. Johnson would again propose a massively decentralized Confederation arrangement in which each province would be offered the powers Quebec demanded for itself. “In order to be valid, a new Canadian constitution must be the product of an agreement between our two nations,” stated the brief. “Indeed, this is the price of equality. For how could two cultural communities be equal if one has to depend on the goodwill of the other for its survival and its growth?”14 When the feds’ white paper was published, Johnson accused Trudeau of bludgeoning the provinces with his charter before doing the hard work of revising the constitutional allocation of powers. “Mr. Trudeau is putting the cart before the horse,” he said. “Property and civil rights come under the jurisdiction of the provinces and we are not ready to give that up.”15
Pierre Trudeau anticipated this sort of response from Johnson, of course, and stood ready to challenge his deux nations vision of Canada. But to his credit, Trudeau also understood the enormous political pressures o
perating on the Quebec premier. On February 1, 1968, for example, just as the white paper was being tabled in the federal Parliament, the Société Saint-Jean-Baptiste presented a brief to the Quebec government recommending that French become the “sole official language” in that province.16 When Johnson remarked to a journalist that Trudeau held a grudge against him because the justice minister could not distinguish between the present Union Nationale government and that of Maurice Duplessis, Trudeau corrected the record immediately. “No, there is no personal barrier and it has nothing to do with Premier Johnson being in the same party as Maurice Duplessis, nothing at all,” he said. “Duplessis, to me, he’s dead and gone. I look at Johnson’s ideas, I look at his speeches, I see what he says on such things as equality and independence. I see the pressures that he is submitted to, which are completely different from those facing Duplessis. Johnson is under pressure from the separatists and from the René Lévesques, which Duplessis never was.”17
Lester Pearson agreed. He thought Johnson a cool and courteous adversary, which was tantamount to admitting that of all the Quebec politicians then making demands of Ottawa, Johnson was the most reasonable. “It was not easy, even had it been desirable,” Pearson later wrote, “to provoke a real confrontation with him.”18 Other English Canadians concurred, noting that Johnson’s soft-spoken and stately manner worked against any accusation that he was a radical. “He simply doesn’t look or behave like a man who would break up Canada,” wrote Peter C. Newman. “The image he projects is that of a thoughtful politician, anxious to please, troubled that he is always being misunderstood.”19
As for the other premiers, those whom Trudeau had taken the trouble to meet and impress, they were almost to a man noncommittal on his proposed charter. Only British Columbia premier W.A.C. Bennett issued a statement in advance of the conference, and it took the form of a warning that he was not prepared to cede power to the feds or anyone else. Ironically, this reaction put him in the same boat as Daniel Johnson and against Trudeau, the man Bennett had called a “great Canadian” just two weeks earlier. If the justice minister was disappointed that the premiers’ warm private reception to his proposals had not translated into public goodwill, he did not let on. As an editorial in the Globe and Mail noted perceptively, none of the premiers could risk the appearance of being against the extension of Canadians’ rights or of ceding power unilaterally. “Mr. Trudeau knows he will run into opposition,” said the Globe. “Little of the opposition will be directed against the rights themselves. It will be argued instead that it is for the provinces to legislate in certain areas, which will turn out to be as many areas as they can keep their hands on.”20
The federal-provincial conference opened as scheduled the morning of Monday, February 5. Prime Minister Pearson sat at the head of the horseshoe table, flanked by Pierre Trudeau. Marc Lalonde, Carl Goldenberg, and Gordon Robertson, clerk of the Privy Council, sat behind him. The premiers and their advisers sat in facing rows on either side of Pearson. For three days, Canada’s leading politicians would sweat under the glare of television lights and the gaze of Canadians watching dutifully from their living rooms.
The prime minister opened the proceedings with a national-unity speech that was heartfelt but deliberately vague. “In this day it is folly to think that a country, let alone a province, can be an island unto itself,” he said. “And it is that overlapping tissue of loyalties involving our hearts more than our minds, which more than anything else constitutes this country. To tear apart these loyalties would be to destroy the country and leave us all diminished. It lies within our power to prevent this, to remove the cause of discontent, to lay the groundwork for a great new act of accommodation which will ensure the hopes and aspirations of all Canadians. It is to nothing less than this to which we must commit ourselves at the conference.”21
By general agreement, the first day was taken up with the presentation of the provinces’ position papers. Ontario’s John Robarts, arguably the English-Canadian premier with the most sympathy for Quebec, spoke immediately after Pearson. He announced that his government intended to adopt the recommendations of the Bi and Bi Commission and introduce French-language rights in Ontario. He stated as well that he was not keen to see such rights entrenched in a charter without extensive study, and proposed that a federal-provincial committee be struck to consider the question. Sounding very much like Pierre Trudeau, Robarts expressed his personal concern about the growing appeal of “narrow nationalism” in Canada and Quebec. “Some Canadians are so indifferent to the future of their country that they appear prepared to sanction its division into two politically separate parts,” he fretted, “one chiefly English-speaking, the other predominantly French-speaking.”22
Western premiers Ross Thatcher and Walter Weir agreed. Like Robarts, they advocated further study of Trudeau’s charter proposal. The premiers from Atlantic Canada—Joey Smallwood, Alex Campbell, G.I. Smith, and Louis Robichaud—were the most in tune with Trudeau’s thinking, all of them keen to extend bilingualism and to consider some sort of constitutional language guarantee. Robichaud, in fact, pledged to make New Brunswick officially bilingual. Not surprisingly, for the premiers of have-not provinces, safeguarding the prerogative of the federal government to tax and redistribute wealth in some new regional equalization scheme was itself a matter of national survival. Quebec’s insistence that the provinces be handed massive new taxation powers worked against this prerogative—a point made repeatedly by Nova Scotia premier G.I. Smith. But it was the pugnacious patriot Joey Smallwood who challenged Daniel Johnson directly. “How anyone who loves Canada can advocate anything that would make Parliament impotent in order to make his own province strong baffles me,” he told his Quebec counterpart. “I don’t think any Canadian wants that. I don’t believe ten percent of the people in Quebec would want to take away any power from Ottawa.”23
Johnson smiled politely as he listened to the other premiers. When he took the floor himself, he offered them a genuinely moving description of Quebec’s unique minority status in North America. If their provinces had found themselves isolated on an otherwise French-speaking continent, he suggested, only then would they have a true sense of how Quebecers felt. “We want to survive, to be dynamic, but there’s no intention of fragmenting the Canadian federation,” Johnson reassured them.24 He then tabled his proposal that a new Constitution be written to acknowledge the deux nations character of Canada. Cultural equality, he said, “depends not only on extending bilingualism territorially but even more on extending the jurisdictions of Quebec, the homeland of the French-Canadian nation.” Time, Johnson concluded ominously, referencing both the Rassemblement pour l’indépendance nationale and René Lévesque’s souveraineté-association, “is no longer on the side of today’s Canada.”25 Johnson’s statement clearly irritated some of the Western premiers. “I don’t see how any English-speaking premier could be happy after hearing that speech,” Ross Thatcher later commented.26
By day’s end, it was evident that at most seven (and possibly only five) provinces might be willing to adopt Trudeau’s charter and from there amend the Constitution. Premiers Johnson, Manning, and Bennett were the dissenters. Manning emerged as the most obstructionist, asserting that Alberta would extend opportunities for individuals who wished to learn French but not at the cost of a “constitutional Munich.”27 “Before approval is given to fundamental constitutional amendments relating to what is commonly called ‘the French fact,’” said Manning, “it is imperative that there be a firm and definite understanding as to what, if any, further demands will be made.”28 For his part, W.A.C. Bennett distinguished himself by downplaying the national-unity crisis altogether, defending the supremacy of Parliament, and cracking jokes throughout his presentation. Lester Pearson, meanwhile, did his best to manage expectations. “Remember, it is the first scene of the first act,” he reminded his peers. “You don’t look for agreement on fundamental issues on the first day.”29
Trudeau was stone-faced
throughout. As he left the Confederation Room at the end of the day, he was asked how he thought the discussions had gone. “It was a very good morning,” he replied, “and a very good afternoon.”30 That was it.
Because there had been no debate during Monday’s proceedings, the Tuesday morning session opened fairly amicably. “I have the impression things are moving,” Daniel Johnson told the press before the session opened. “Where there is action, there is hope.”31 Journalists covering the session said Pierre Trudeau looked tired, undoubtedly because he had spent the previous evening revising the speech he was scheduled to give that afternoon. The minister of justice distinguished himself by wearing a grey suit and a “soft green” shirt—a stark contrast with all other participants, who appeared in conventional white shirts and dark ties.
The relative equanimity of the previous day did not last. By mutual agreement, the morning session took the form of an unstructured conversation about how to proceed with constitutional reform, and, inevitably, it revealed significant differences of opinion. Daniel Johnson was the first to speak. Following some introductory pleasantries, he expressed regret that the constitutional debate had been straitjacketed by the “spokesman for the federal government,” by whom he meant Trudeau.32 Lester Pearson interjected immediately. He reminded Johnson of the importance of cabinet solidarity and assured him that Trudeau spoke for the federal government. Trudeau himself then plunged into the conversation, taking direct aim at the Quebec premier and setting in motion a ninety-minute scrap that would become legendary.
Trudeaumania Page 17