The formation of section 7 of the Charter.

• Author: McMurtry, Roy
• Position: Canada

I am delighted to participate in this interesting Ottawa Law Review Symposium. I have been invited to give a personal overview of the patriation process which included an entrenched Canadian Charter of Rights and Freedoms. (2) Participating in the negotiations (3) and Supreme Court reference (4) were most memorable experiences for me. The result was that Canada actually changed from a parliamentary democracy to a constitutional democracy. The Supreme Court of Canada, of course, became the major institution in the interpretation of the Charter. Former Supreme Court Justice Frank Iacobucci (5) played a major role in the evolution of the Charter and I very much enjoyed hearing his address.

Immediately following the provincial election of September 18, 1975, I was appointed the Attorney General of Ontario. Quebec, given its unique position and dare I say "distinct society" in Canada, had long been a matter of great interest to me. I felt strongly that some reform of the Constitution, particularly in relation to Quebec, would have to become a political priority. I was also aware of the historical role that Ontario had played in the evolution of the British North America Act (6) particularly in the context of strengthening provincial powers in advocacy before the Judicial Committee of the Privy Council in the United Kingdom. (7)

The emergence of the Parti Quebecois (8) as a serious alternative to the Liberal Government of Quebec was a major factor in the renewal of constitutional discussions that had largely been in abeyance following the unsuccessful Victoria Conference of 1971. (9)

The Annual Premiers' Conference in Edmonton in August of 1976, which I attended, was to be the first serious discussion at that level since Victoria. There appeared to be a degree of urgency, since Quebec was in an election year and it was believed that some progress on the constitutional front might assist the federalist forces in the province. (10)

As a newcomer to the politics of the Constitution and as someone who cared deeply about the separatist threat in Quebec, I was particularly enthusiastic about any initiatives that could bring about meaningful constitutional reform and satisfy the legitimate aspirations of Quebec.

On this latter point, I soon learned that the traditional view of Quebec political leaders was that patriation should await the resolution of all the other constitutional issues important to Quebec and that, in fact, patriation should be the final step in Canada's constitutional evolution. Progress on the constitutional front immediately before an election was not a priority for the Robert Bourassa (11) Government.

The election of the Parti Quebecois in November of 1976 clearly surprised Ottawa as well as most of Canada. (12) The election did not bode well for progress in the constitutional reform process, as there was a great deal of skepticism about the Quebec government seriously participating in constitutional discussions.

In any event, there were many meetings leading up to the Quebec referendum in the spring of 1980 but the Quebec government's separatist agenda did not permit any real progress on any reform of the Constitution. While the majority of provinces recognized the importance of strengthening the federalist forces in Quebec, they also had their own constitutional agendas.

Between the summer of 1978 and the end of 1979, there were no fewer than twelve major meetings between the federal government and the provinces. (13) By the end of 1979, it was apparent that any further discussions would have to await the Quebec referendum scheduled for the spring of 1980. Given the extent of the federal government's public commitment to "renewed federalism" during the referendum campaign, the Constitution was to become a priority again. (14)

At a meeting in June of 1980, the first ministers of Canada committed many of their ministers, including myself, to a long, hot summer of constitutional discussions. (15) They agreed on a list of twelve subjects (16) and a continuing committee of ministers was created from all provinces which would meet at regular intervals at different locations across Canada. (17)

The principle difficulty with the process was that most provinces had specific agendas or "wish lists" that would have to be satisfied before any real effort would be made to address the other issues.

Despite these obstacles, the ministers reached substantial agreement on a majority of the items on our agenda. However, in retrospect the major importance of the summer of 1980 was that the ministers representing each province gained a much better understanding of the concerns and aspirations of their sister provinces. More importantly perhaps, was that a number of personal friendships were created which would provide vital links between the premiers when the search for consensus was renewed in the fall of 1981.

Any cautious optimism that some of us harboured for at least some agreement at the First Ministers' Conference in September of 1980 (18) was soon dispelled before the Conference had even formally commenced. The Governor General (19) hosted a dinner for the first ministers (20) and their ministers on the eve of the meeting. The formal portrait photograph barely had been taken when it became evident that an atmosphere of good will did not permeate the gathering. The obvious animosity between some of the English-speaking premiers and Prime Minister Trudeau (21) was thoroughly enjoyed by a gleeful Rene Levesque (22) who made several references to the Prime Minister as the "princeling" who was "clearly out of sorts." I remember telephoning my wife that night and stating that the meeting of first ministers had for all practical purposes ended before it had even officially begun.

We were not surprised, therefore, when Prime Minister Trudeau in October of 1980 announced his intention to unilaterally request that the United Kingdom patriate the Canadian Constitution. (23) The Governments of Ontario and New Brunswick were supportive and the battle would now shift to the courts. The Governments of Quebec, Manitoba and Newfoundland initiated references to their appellate courts seeking declarations that the federal government's patriation request without the support of the provinces was unconstitutional. (24)

In January of 1981, I travelled to the United Kingdom to support Trudeau's proposed patriation while assessing political attitudes about the Canadian constitutional controversy. My visit convinced me of two realities. Firstly, there was a surprisingly high level of political interest in out constitution; and, secondly, there would be no easy or routine passage of the Canadian constitutional patriation package by the Westminster Parliament.

My most important meeting was with the Attorney General, Sir Michael Havers. (25) He stated that while the United Kingdom Cabinet wanted to accommodate the request of the Canadian federal government, he was clearly concerned about the court challenges in Canada.

Immediately following my return to Canada, I wrote to him reiterating my views as to the importance of the resolution of the "legality" issue by the Supreme Court of Canada. I had become convinced, as a result of my meetings in London, that the Westminster Parliament would never act on our Constitution until the issue had been addressed by Canada's highest court. In part, I wrote to him as follows: "My fear is that these worthy goals may be put in jeopardy by an approach which, in its haste, does appear insensitive to legitimate questions that others have posed as to legality, and perhaps inattentive to the need to gain the support of a broad consensus in Canada for the changes." (26)

As a result, the federal government reluctantly did agree to an early hearing by the Supreme Court and some weeks later it was announced that the historic arguments would commence on April 28, 1981. (27)

It turned out that I would be the only Attorney General personally to make an oral argument as counsel for his or her government.

The two key questions that were being asked of the Supreme Court of Canada to determine were:

(a) Whether the federal government's unilateral request of the Parliament of the United Kingdom to amend the Canadian Constitution without the consent of the provinces was constitutionally legal.

(b) Whether there was an established constitutional convention whereby the federal government had generally sought the consent of the provinces before asking the Parliament of the United Kingdom to amend the Canadian Constitution. (28)

For most scholars, constitutional conventions are political issues and are not justiciable by the courts. (29)

The Supreme Court of Canada in 1981 was faced with an absolutely unprecedented situation. It was regrettable that our political institutions had failed to resolve the issue. The problem required a political solution; but, after years of political gridlock, the Supreme Court of Canada, in effect, was being asked to resolve...