Later this week, Justin Trudeau will be sworn in as Prime Minister of Canada. Although he was elected on his own accord, with a platform and a style that is uniquely his, it’s no surprise that his surname evokes memories reminiscent of his father and former Prime Minister, Pierre Elliott Trudeau.
One of Prime Minister P.E. Trudeau’s most enduring legal legacies is obviously the Charter of Rights and Freedoms. The Charter continues to be the strongest symbol of Canadian identity among the public.
Constitutional reform is unlikely to feature prominently on Prime Minister Justin Trudeau’s immediate agenda, as he was the only leader of a major party whose proposals for the Senate did not require constitutional changes. We often take it for granted today, but the constitutional amendment creating the Charter was accomplished through much negotiations, compromises, and a process of many, many years.
This weekend I dug deep into the archives and came across a speech that Pierre Elliott Trudeau gave on September 4, 1967, nearly 50 years ago, and while he was still the Minister of Justice. The speech was delivered to the 49th Annual Meeting of the Canadian Bar Association in Quebec City.
The post-war period observed significant centralization of power in Canada, enhancement of the role of the Supreme Court, and questions over provincial autonomy. The shadow of the Japanese Reference weighed heavily over any conversations about individual rights and the ability of government to remove these rights.
I reproduce the speech here in its entirety, and it touches on a number of interesting issues, including the challenges of constitutional reform, changing societal values, patriation, the tensions in federalism, and the need for a constitutional Bill of Rights, a full 15 years before the Charter was enacted.
A Constitutional Declaration of Rights
Of all the problems that Canadian public opinion is currently concerned with, the one that is most frequently debated, the one that forth the strongest expressions of view, is that of constitutional reform.
Although the subject is one of serious proportion, it is nevertheless one which I should like to express some thoughts to you. There is no more appropriate forum, no place where this topic can be treated with more objectivity and serenity, than that composed of the members of the Canadian legal profession.
Your Association – I should say our Association, because you have done me the great honour of making me your honorary president – is a meeting place for those whose profession it is to examine the law and to ponder its application. We must recognize that the constitution is the country’s fundamental law, the law on which our entire judicial system is based. If the constitution of a country collapses, or if its authority is seriously challenged, ordinary law loses its power to command and society itself is propelled toward anarchy.
For this reason men who are free – and who are anxious to remain so – do not lightly undermine the constitutional framework of a democratic country. They only approach it ‘with fear and trembling’. For this reason, among others, I have personally resisted what, if it has not become a mania, might be tenned a fashion of constitutional iconoclasm. At a time when every last
trooper believed he had a new constitution in his bags, I quite willingly classed myself among those who began by asking questions: asking what new society would be replacing the old; asking whether the new legal norms would ensure the same degree of peace, of liberty, and of prosperity as the old. While I wished to reflect upon the matter, it was not the possibility of change itself that displeased me. On the contrary, I have always been convinced that we, men of the law, should not only advocate respect for the constitution, but also encourage its development.
In a submission presented to the Tremblay Commission in 1955, I wrote:
The Province [of Quebec] could well declare herself ready accept the incorporation of a declaration of human rights in the constitution on the condition that the rights of disallowance and reservation be done away with. The Province could suggest a precise plan for repatriating the Canadian constitution, including in it a method of amendment, on the condition that the Senate be turned into a body more federalist and less unitary and on condition that the organization of the Supreme Court be made to depend directly on the Canadian constitution rather than solely on federal law.
Six years later, in Social Purpose for Canada, I again took up the same kind of propositions. And ten years later, at the beginning of 1965, in a paper prepared for eventual presentation to the Committee of the Quebec Legislature set up to examine the constitution, I made similar suggestions, adding:
I do not accord an absolute and eternal value to the political structures or the constitutional forms of states… With the exception of a certain number of basic principles that must be safeguarded, such as liberty and democracy, the rest ought to adapted to the circumstances of history, to traditions, to geography, to cultures and to civilizations.
As Thomas Jefferson said about the Constitution of the United States: ‘Nothing then is unchangeable but the inherent and unalienable rights of man.’
Nevertheless, I have always wished to assure myself that the changes would be for the best and not for the worst. It has become commonplace to repeat that constitutions are made for men and not men for constitutions. However, one tends to forget that constitutions must also be made by men and not by force of brutal circumstance or blind disorder. In this area, more than any other, one must know where a policy leads.
And this is what prompts me to say a few words about the policy of the present Liberal government in constitutional matters.
You will recall that over a year ago the Prime Minister informed the House of Commons that a special committee of senior federal officials had been formed to examine and to prepare studies on particular constitutional questions. This work had progressed to the point where, shortly after becoming Minister of Justice, I felt that a broader and more comprehensive review could be undertaken by these officials working jointly with persons outside the public service. Accordingly, I appointed Mr. Carl Goldenberg, Q.C., Special Counsel on the Constitution and have attached to his office, as advisors, some of the most eminent constitutional authorities in the country. They are now examining a variety of constitutional matters; for example, the constitutional problems arising from various federal-provincial arrangements and our system of final adjudication, particularly as it relates to the constitutional field. Studies on other major constitutional issues, such as treaty-making powers and related international matters, are very well advanced. Moreover, the government is awaiting the report of the Royal Commission on Bilingualism and Biculturalism which will undoubtedly make important recommendations calling for action in many areas within, or bordering upon, the constitution.
We have not confined our activities in the constitutional field to these studies. While this work has been going on, ministers and officials have been looking for the best basis on which to begin a dialogue on constitutional reform between the federal government and the provincial governments. We have reached the conclusion that the basis most likely to find a wide degree of acceptance, and one that is in itself a matter calling for urgent attention, is a constitutional Bill of Rights – a Bill that would guarantee the fundamental freedoms of the citizen from interference, whether federal or provincial, and that would have a high degree of permanence in that neither Parliament nor the Legislatures would be able to modify its terms by the ordinary legislative process.
As lawyers, you will appreciate that the adoption of a constitutional Bill of Rights is intimately related to the whole question of constitutional reform. Essentially, we will be testing – and hopefully, establishing – the unity of Canada. If we reach agreement on the fundamental rights of the citizen, on their definition and protection in all parts of Canada, we shall have taken a major step towards basic constitutional reform.
At a meeting with the provincial premiers held in July of this year, the Prime Minister stated that he would issue an invitation to them to attend a conference to discuss the possibility of adopting a constitutional Bill of Rights bundling on both the federal and the provincial governments. This invitation has been issued, and it is hoped that a conference can be held early in 1968. Much useful work has already been done in the field of civil rights in Canada, particularly in connection with the enactment of the Canadian Bill of Rights in 1960. We are now aiming at a new Bill which will be broader in scope and will be firmly entrenched in the constitution. The Canadian Bill of Rights sets out the legal rights of the citizen in respect of life, liberty, and the security of the person, and such basic political rights as freedom of speech and of the press, freedom of religion, and freedom of assembly. There are also various provincial statutes affording protection against discrimination and invasions of human rights. All of these measures are, however, statutory in character and they do not preclude future encroachments on these rights by Parliament or the Legislatures. They may be amended in the same way as any other statute. Moreover, they do not cover certain rights which are of special concern to a country like Canada, founded on two distinct linguistic groups.
Accordingly, we envision a Bill of Rights that will be broader in scope than the existing legislation. We all agree on the familiar basic rights- freedom of belief and expression, freedom of association, the right to a fair trial and to fair legal procedures generally. We would also expect a guarantee against discrimination on the basis of race, religion, sex, ethnic or national origin. These are the rights commonly protected by bills of rights. They are basic for any society of free men.
But there are rights of special importance to Canada arising, as I have said, from the fact that this country is founded on two distinct linguistic groups. While language is the basic instrument for preserving and developing the cultural integrity of a people, the language provisions of the British North America Act are very limited. I believe that we require a broader definition and more extensive guarantees in the matter of recognition of the two official languages. The right to learn and use either of the two official languages should be recognized. Without this, we cannot assure every Canadian an equal opportunity to participate in the political, cultural, economic, and social life of this country. I venture to say that, if we are able to reach agreement on this vital aspect of the over-all problem, we will have found a solution to a basic issue facing Canada today. A constitutional change recognizing broader rights with respect to the two official languages would add a new dimension to Confederation.
If we agree on the general content of a constitutional Bill of Rights, a number of important questions will remain to be resolved. These will be important for everyone but, from a technical point of view, they will be of special concern to those who, like ourselves, are trained in the law. Should the rights be declared generally, or defined precisely with exceptions clearly specified? For example, if we guarantee freedom of speech without qualification, will this invalidate some of our laws which deal with obscenity, sedition, defamation, or film censorship? Is freedom of religion compatible with compulsory Sunday-closing legislation? What of a constitutional guarantee of ‘due process of law’? In the United States, this phrase has, in the past, created many problems because of its vagueness. At times, the courts have construed it so broadly as to invalidate some social legislation which we would now accept as essential. Should we avoid the possibility of such an interpretation of ‘due process’ in Canada by using a more precise term to guarantee the rule of law? What of the right to counsel? Should this ‘right’ impose a duty on the government to provide counsel for those who cannot afford it? If we recognize the right of every person to use and to be educated in either of the two official languages, should we limit the exercise of this right to places where there is a concentration of one or the other language group?
These are some of the questions which will arise as we try to develop a constitutional Bill of Rights. I mention them here, not because I expect immediate answers, but to illustrate the complexities involved in any basic constitutional reform. I hope that the Canadian Bar Association will study some of these problems and in due course give us the benefit of its advice, in the light of its long-standing interest in the protection of human rights
I envision a Bill of Rights that will not only be broader in scope than the existing legislation but will also be firmly entrenched constitutionally. The Canadian Bill of Rights of 1960 is a statute binding only at the federal level of government. Even at that level, the courts have shown some reluctance to interpret it as having an overriding effect. Also, it obviously does not apply to the exercise of provincial powers. Moreover, the effect of most existing human rights legislation in Canada is rendered uncertain by the present division of legislative powers. It is not clear to what extent Parliament or the Legislatures can validly act in the protection of human rights. We will face this problem as long as we try to protect human rights by ordinary legislation. It is for these reasons that I believe the time has come to place the necessary safeguards in the constitution.
I am thinking of a Bill of Rights that will be so designed as to limit the exercise of all governmental power, federal and provincial. It will not involve any gain by one jurisdiction at the expense of the other. There would be no transfer of powers from the federal Parliament to the provincial Legislatures, or from the provincial Legislatures to the federal Parliament. Instead, the power of both the federal government and the provincial governments would be restrained in favour of the Canadian citizen who would, in consequence, be better protected in the exercise of his fundamental rights and freedoms.
I have already said that agreement on a process whereby a Bill of Rights would be entrenched in the constitution will raise other basic constitutional issues. First, what procedure is to be followed in amending the constitution? How is the Bill to be entrenched? Shall we ask the Parliament at Westminster to enact the necessary changes in the British North America Act? Or will we finally agree on a formula for amending our constitution in Canada? It is inevitable that discussion of an entrenched Bill of Rights will lead to a renewed attempt to agree upon an amending formula – something we have failed to achieve after years of effort. I can think of no better occasion for seeking to find a solution to the problem of developing an Canadian constitution in Canada – of finally ‘patriating’ our constitution – than when we have reached agreement on constitutional protection of the basic rights of the citizen.
We shall also face other constitutional issues. A constitutional Bill of Rights would modify even further the concept of parliamentary sovereignty in Canada. Once fundamental rights are guaranteed, they will be beyond the reach of government at all levels. This will confer new and very responsibilities on the courts, because it will be up to the courts to interpret the Bill of Rights, to decide how much scope should be given to the protected rights and to what extent the power of government should be curtailed. This will inevitably bring us to our consideration of the system of final adjudication in the constitutional field by the Supreme Court of Canada, as the latter is presently constituted.
A Bill of Rights entrenched by an amending formula that ‘brings home’ the constitution, and applied through Canada by our supreme constitutional tribunal, will open the door to further constitutional reform. For example, will not the powers of reservation and disallowance of the provincial legislation lose their meaning once a Bill of Rights has been entrenched in the constitution? Are there not other antiquated features of the British North America Act which might well be reconsidered at that time?
You will see now why I sad, at the outset, that the adoption of a constitutional Bill of Rights opens the door wide to necessary constitutional change. I believe that, once we have agreed on a Bill of Rights, an amending formula, and a system of final adjudication, little would stand in the way of a general constitutional conference to discuss such other particular changes as may be necessary to adapt our constitution to the requirements of our day. We look forward to such discussions. Our policy is flexible enough to allow for consideration of any reasonable initiative or proposal.
From the foregoing remarks, it should be apparent that the government’s policy in regard to the constitution has been consistent and progressive throughout. It has been, and remains, a policy of controlled development, one winch does not fear change. Indeed, our policy even fosters change, provided that it maintains the integrity of Canada. Our aim is the maintenance of a strong federal government and a strong provincial government. That is what federalism means.
That, then Mr. Chairman, is more or less what I wanted to say on the question of constitutional amendment.
It is certainly correct to infer that during a certain period the federal government has not manifested much enthusiasm for public discussion of the Canadian constitution. We realized that a federal system was a delicate machine, easier to throw out of kilter than to start off again; and, in the capacity of the central government, we felt that we had a great responsibility for the maintenance of harmony among so many culturally and geographically distinct regions. Also, we wished to give the country time to reflect upon and to adjust to the new relationship of political, cultural, social, and economic forces that have been developing in the dawn of our second century.
I believe that this course was wise. Several governments have set up committees charged with preparing for constitutional discussion. Politicians and public opinion have had ample opportunity to measure the importance of the problem and the difficulties inherent in its solution. The time is ripe.
The federal government declares itself ready to discuss any constitutional changes that are proposed.
As I said in Parliament on the twenty-third of June last, when asked about certain constitutional amendments: ‘I have not received any representations asking for such an amendment, Mr. Speaker. If I do, I shall look carefully into them.’
We are not going to be caught in a posture of immobility. But we do desire that any changes shall take place in an orderly way and under the guidance of governments responsible to the people. That is why the federal government has taken the initiative with concrete propositions. (Besides, one must not forget that for one hundred years, when it came to the question of modifying the text of our constitution, it has almost always been the federal government that has taken the initiative). We have not supported vague and contradictory formulas designed to change everything all at once without really knowing what would follow. Quite simply, we propose that the discussion be begun with essentials: precise and limited they may be, but all the rest can follow.
If the Fulton-Favreau formula for the amendment and repatriation of the constitution has failed, it is probably because what was sought was unanimous agreement on the technical details rather than on the substance. Today, we are beginning with the substance. We say to all Canadians, from all provinces: let us first agree on the basic freedoms, on the fundamental rights that we wish to guarantee. After that, we will deal with the mechanism.
The challenge, Mr. Chairman, is an imposing one. Are there any higher bidders?