by John English
Meanwhile, the appeal made by the provinces and by Aboriginal groups to the British Parliament had surprising success. Despite Prime Minister Margaret Thatcher’s firm commitment that it would “only receive a request … from the Federal Parliament of Canada,” a British parliamentary committee under Sir Anthony Kershaw heard provincial grievances, welcomed Aboriginal delegations, and advanced “legal claims over Canada and its Constitution in language that seemed better suited to the era of General Gordon of Khartoum.”42 The foes of the empire had beheaded Gordon almost a century earlier, and Trudeau may have wished he could administer the same fate to Kershaw. However, he realized that Scottish nationalists, old-fashioned imperialists, and publicity-seeking politicians in Westminster did not matter as much as the British prime minister’s commitment to pass the patriation bill.* Unfortunately, Thatcher was increasingly less amused by the troubles Trudeau had caused her, and her own position with her caucus was weak.
In Ottawa, Britain’s high commissioner, the remarkably maladroit Sir John Ford, indicated that he believed the British would and should not pass the patriation bill. An astonished Mark MacGuigan, the minister for external affairs, told the Commons that such conduct was “completely unacceptable to the Canadian government.” Sir John then held his own press conference and,* incredibly, warned that “it would be a very great mistake to assume the British Parliament would immediately do exactly what they were asked to do.” An enraged Jean Chrétien declared in the House: “The age of being taught from England is passed.” For its part, the British government quickly replaced Sir John, who took early retirement in May. Trudeau’s dormant anti-British sentiments were stirred once more. Watching an aide enraptured with visiting royalty, he said bluntly, as they looked out the parliamentary window: “Always remember, they shit too.”43
That populist note marked Trudeau’s approach in the House during the warm summer months while the NEP simmered, the Constitution festered, and the economy got worse. Chief Justice Laskin and his closest friend at the Supreme Court, W.Z. “Bud” Estey, attended a large gathering of Canadian lawyers at Queen’s College, Cambridge, in late July, attracted by the wedding of Charles and Diana, generous tax deductions for their travel and “education,” and the presence of the major players in the constitutional struggle—Jean Chrétien and provincial attorneys general Roy Romanow of Saskatchewan and Roy McMurtry of Ontario. Laskin seemed weary, while the ebullient Estey reflected the fierce debate occurring among the justices as the court faced its greatest challenge and opportunity. A ruling against the federal government would destroy the patriation plan and, almost surely, Trudeau’s political career.44
Trudeau himself was anxious and temperamental as he awaited the court decision. He and his speechwriter André Burelle jousted over the language questions at the core of the charter. In particular, Burelle objected to the provisions in the proposed charter that countered Quebec’s Bill 101 restrictions on school choice while accepting Premier Davis’s demand that Ontario escape official bilingualism. Burelle shared his views with Gérard Pelletier, who indicated that he agreed. When Pelletier returned from his ambassadorial post in Paris on a brief visit to Ottawa, he called on Trudeau and expressed his views. Trudeau exploded in fury, blamed Burelle for influencing Pelletier, and rejected the criticisms so bluntly that Burelle told his mentor he would no longer pass on his complaints lest they undermine the relationship of the two old friends. The incident reveals how deeply and personally Trudeau became involved in the constitutional project and how sensitive he was to criticism. The lonely heights of 24 Sussex became even more elevated that summer.45
On September 28 Laskin appeared before the cameras for the first televised decision of the court. Unfortunately, the audio did not work, and thousands of lawyers, students, and others across the country watched as Laskin mouthed the words of the historic decision. Even if they had heard him speak, the audience would have been confused; the court, like the country, was divided. On the first question, whether the charter imposed restrictions on federal and provincial power, all justices agreed that it did. On the second question, whether the patriation of the Constitution, including the charter, was “legal,” the decision was yes, 7 to 2. The two dissenters were Diefenbaker-appointed justices Ronald Martland and Roland Ritchie. On the third question, whether there was a “convention” that provincial agreement was needed for major constitutional changes, six judges held that there was one such convention that required “substantial” provincial agreement for a major constitutional change, while three—Laskin, Estey, and William McIntyre—disagreed. Laskin had indeed not been able to lead his court. Ironically, Trudeau’s appointee and former academic colleague Jean Beetz, who had mooted the possibility of unilateral patriation in the wake of the failure of the Victoria Conference, now voted with the majority and wrote some of the majority judgment. Trudeau learned of the decision on a stopover in Seoul, South Korea, on his way to the Commonwealth Conference in Melbourne, Australia. He was disappointed, enraged, and, even more, perplexed.46
Trudeau had counted on Laskin and had sincerely thought that the legal issue was clear. He knew now that the eight premiers who were against patriation represented “substantial” opposition, and he realized that his plan was imperilled. He called Chrétien, and they agreed on a ploy: they would declare a victory, rather than complaining about this complex decision. Trudeau also indicated that he would make one further attempt to acquire more provincial support by having a final federal-provincial conference. As his mind wandered through the possibilities during the long flight over the Pacific, he remained fastened on his goal. He would make one last effort with the premiers, but if it failed, he would then seek unilateral patriation. If that request was rejected by the British Parliament, he would put it to the public in a referendum as a declaration of independence for a sovereign Canada. An alternative would be an election in 1982. He would not give up.*
Chrétien continued to meet with McMurtry and Romanow, who had bet Chrétien a good bottle of scotch that the Supreme Court would side with the provinces. Bill Davis and Richard Hatfield still supported the government, but the court decisions and the strident opposition of their federal Conservative colleagues made their position difficult. In Quebec, Ryan was as strong as Lévesque in his opposition and joined with him in supporting a joint resolution of the National Assembly condemning unilateral patriation. Nine anglophone Liberals defected, however, and Ryan’s already fragile leadership was weakened. On October 13 Trudeau told the CBC that he had promised to meet with the premiers in early November for one last try to reach an accord.47 If none was reached, his government would do what the people wanted. Private and public polls indicated that the charter and patriation were popular throughout the country, and the hint of a referendum was intended to stir the opposing premiers from their constitutional bunkers.
The premiers came to Ottawa on November 2, 1981, hoping that their meeting could prevent unilateral patriation. Trudeau was intimately involved in the details. As Michael Kirby and his team laboured long into the evenings, Trudeau pored over documents at 24 Sussex. Kirby would sometimes call Trudeau, exchange some wording, and then return with or without a change. There were uncertainties: Trudeau and the Liberal caucus were willing and, in some cases, eager to consider a referendum; Chrétien strongly disagreed. In his own words, “I had seen too well the splits the Quebec referendum had made in families and friendships: I never wanted to go through another one.” But Kirby and Trudeau believed it an essential weapon for the federal side, one that could weaken the gang of eight opposing premiers, with their populist appeal.
Intrigues flourished as the premiers gathered in the cavern of the old railway station across from the Château Laurier. Lévesque was already suspicious of his fellow gang members: Blakeney, he thought wrongly, was Trudeau’s “joker.” He worried about Davis’s ties with other Conservative premiers and fretted about his own delegation and its idiosyncrasies. His minister of intergovernmental affairs, Clau
de Morin, was indispensable, but his ties with federal officials were suspiciously close—a fact confirmed after the conference by Loraine Lagacé, a Lévesque staffer who was soon supplying him with federal “documents” that confused rather than clarified.
Several among the Quebec delegation had already concluded correctly that she was a “double agent,” and many were suspicious of Morin himself, again with good grounds. Old animosities persisted: Claude Ryan, who had joined with Lévesque to condemn Trudeau’s action, received no reply when he begged the premier not to abandon Quebec’s “historic” veto. In spite of the divisions, the gang held together through the first day, but the nervousness of many of its members was obvious. Brian Peckford, who had outraged Trudeau by siding, earlier, with Lévesque, now openly expressed a willingness to compromise, declaring that Canada could not “afford the luxury of a winner-take-all attitude.”48
By the third day of the conference, it appeared that there would be no winners. Sterling Lyon, the most conservative premier, had to return to an election campaign in Manitoba, and Lévesque was threatening to leave. Trudeau had met with his Cabinet on the previous evening and, with them, debated the referendum option and the response he should make to the proposals that Davis, after consultation with the gang of eight, would produce. Many ministers supported the referendum, but Chrétien, the major negotiator, remained strongly opposed. Faced with division, the Cabinet gave Trudeau a free hand. The following day, the meeting went badly. Over breakfast, Blakeney proposed changes to the premiers, but Lévesque peremptorily rejected them. By mid-morning Trudeau’s frustration was visible, and Lévesque’s fatigue rimmed his eyes. Trudeau focused assertively on his plan and proposed that a referendum should resolve what the premiers could not. As old arguments were repeated, Trudeau turned to Lévesque and, speaking in French, challenged him, as a democrat, to “face the people.” Lévesque jumped at the idea, and Trudeau immediately adjourned for lunch, telling waiting reporters, “The cat is among the pigeons.” Quebec and Ottawa had a deal. There would be a referendum.
But the referendum was a dead cat. That night Trudeau’s own closest advisers, notably Lalonde and Chrétien, argued against it. Moreover, the opposing premiers were quickly coming to terms with a proposed deal, first presented by Davis: it allowed opting out of federal programs, but without compensation; language rights, but with a notwithstanding clause; and the “seven provinces / 50 percent of the population” amending formula proposed by the premiers in April that, with Lévesque’s agreement, gave no veto to Quebec over constitutional change. Trudeau was unhappy, reluctant to give in on the referendum, and willing to have the conference collapse. He would then go to London with his own version of the Constitution, not this watered-down one. At 10 p.m. Davis called 24 Sussex, where Trudeau and his ministers were meeting. He said that neither he nor Hatfield would support Trudeau if he did not agree to the deal the premiers were drafting that night. While Trudeau was talking with Davis, Chrétien also argued against a referendum with his colleagues. When Trudeau returned to the room, the mood was different. He listened but said little, and when the ministers left, most were unsure what the morning would bring. As Chrétien prepared to go, Trudeau drew him aside and said, “Jean, if you can get the majority of the provinces with a majority of the population to accept your solution, I think I’ll be able to accept it.” Then he added, “But let me sleep on it,” thus ensuring a sleepless night for Chrétien.49
Earlier that day Chrétien had met Roy McMurtry and Roy Romanow for breakfast, first at the Château Laurier and later at the kitchen of the convention centre. They had sketched out a proposed settlement on a piece of paper: a charter in exchange for the provincial amending formula; opting out without compensation; and the inclusion of a notwithstanding clause. During the day the three “peddled” the proposed agreement among ministers, officials, and others. Then, throughout that night, as Chrétien tossed in his bed, the premiers’ officials and ministers met—but with no participation by Quebec. At 6:30 in the morning, Romanow told Chrétien that Lougheed, the most powerful player, would buy in but that Quebec did not yet know anything of the plan. A worried Chrétien told Romanow that Lyon should not sign, so that Quebec was not the only holdout, but Lougheed proved his power once more by convincing Lyon, who loathed both the charter and Trudeau, to sign. At 7:30 Chrétien told Trudeau he had a deal.
That morning it was Brian Peckford, an odd choice, who presented the deal. Trudeau, always the actor, grimaced as the Newfoundland premier read it; Lévesque noticed and grinned, expecting a curt rejection by Trudeau. But then Trudeau raised his eyes and declared: “It makes a lot of sense.” Lévesque was isolated and frustrated and became, in the words of his biographer, “a shattered man.” The Quebec premier asked plaintively for the veto, but that had disappeared in April, when he had joined the gang. Just as Lévesque had compromised then, so Trudeau did now. As the other premiers celebrated with the prime minister, Lévesque stormed out of the convention centre. For him, patriation of the Constitution, facilitated by the “night of the long knives,” had become a “dagger” in his heart.
Trudeau knew the victory was not sweet. But in the words of Lévesque’s favourite adviser, Claude Charron, it was Trudeau’s. The struggle between “the champions,” Lévesque and Trudeau, had ended. The former, Charron said, was what the Québécois are; the latter, what they hoped to be—a comment Lévesque himself often made, and in Charron’s view it was a compliment to both leaders. The populist Lévesque, the patrician Trudeau; the crusading journalist, the engaged intellectual; the fiery nationalist, the passionate antinationalist; the charming roué, the disciplined actor; the crumpled suits and cigarette ash, the perfect cut with the rose in the lapel—these two leaders had shaped their times, their province, and their country. November 5, 1981, marked one of Trudeau’s greatest triumphs, but it would also be his last.50
* Johnston’s invaluable memoir contains an exchange about the character of Liberalism in the spring of 1981 between him and Trudeau, when Bay Street, if not yet Main Street, was becoming angry with the Trudeau government. Trudeau responded to Johnston’s call for closer attention to these complaints with a statement that the Liberal Party had succeeded best when it was “a moderate voice of reform between the conservative and socialistic camps,” a tradition he believed “must be continued” (65). A later anecdote summarizes well Johnston’s bafflement with Trudeau’s attitude toward money issues. In the early 1980s, an angry Johnston stormed into Trudeau’s office to complain about the transfer of domestic flights from Dorval to Mirabel airport, the costly mistake of the seventies built far outside Montreal’s city centre. Trudeau was steely in resisting the complaints until Johnston, who as Trudeau’s personal lawyer knew well his miserly ways, said that the taxi fare to Mirabel would be one hundred dollars return. Trudeau removed his glasses, asked, “Are you serious?” and quickly decided in favour of Dorval. Don Johnston, Up the Hill (Montreal and Toronto: Optimum, 1986), 88. Mr. Johnston confirmed the details to me during a conversation.
* They joked that Chrétien would translate French questions to his unilingual co-chair of the Continuing Committee of the Ministers on the Constitution if Romanow translated the Ukrainian questions.
* Davis had become premier after Premier John Robarts resigned. He won a leadership contest despite considerable concern about his lifeless speaking style and boyish appearance. As minister of education in Ontario, he had acquired a reputation as the “reddest” of Tories, notably for his promotion of the Hall-Dennis Report, which recommended fashionable “sixties” nostrums to “modernize” Ontario’s traditional educational system. had harsh words for each other as their provincial and political interests trumped their Tory fraternity. While Lougheed often found himself arguing on the side of Quebec for provincial rights, Davis began the September conference firmly in support of the federal government. The traditional Quebec-Ontario alliance gave way to an odd Alberta-Quebec entente. Davis’s alliance with Trudeau, however, ha
d some political dangers, and he was accused of trying to introduce official bilingualism into Ontario. He quickly denied such a possibility—and earned strong criticism in Quebec. Even the Globe and Mail contrasted this manoeuvring with the courage Hatfield had shown when he called for entrenchment of bilingualism in the charter.18
* In a satirical column entitled “Too Many Traitors,” political columnist Geoffrey Stevens anticipated the impending conflict with a mock report on how the Americans might cover the Canadian political war: “In an exclusive interview with NBC News at his command headquarters at the Banff Springs Hotel, Peter Lougheed, leader of the breakaway Alberta sect, vowed to ‘establish provincial paramountcy in interprovincial trade if the blasphemous child-molesters from Ottawa lay their heinous, lice-encrusted hands on a single drop of sacred Alberta oil.’ Meanwhile, in Ottawa, Assistant War Minister John Roberts said he will dispatch the entire fleet of Jet Star executive aircraft to bomb the Diefenbaker Library in Saskatchewan unless ‘that foul infidel Allan Blakeney and his goat-eating cohorts stop levying indirect taxes by noon tomorrow.’ Finally, from Harrington Lake, where he has fled to escape the intermittent strafing of the capital by the PEI Air Force, Prime Minister Trudeau announced that any provincial quislings who survive ‘interrogation’ will be tried for ‘crimes against national unity’ when the Fifty-Three Years’ War ends.” Globe and Mail, Sept. 27, 1980.