Federal-Provincial Conference of First Ministers on the Constitution, Opening Remarks by Premier Rene Levesque, Monday, November 2nd (2-5 November 1981)
By: René Lévesque
Citation: First Ministers’ Conference on the Constitution, Opening Remarks by Premier Rene Levesque, Monday, November 2nd, Doc 800-15/015 (Ottawa: 2-5 November 1981).
Other formats: Click here to view the original document (PDF).
FIRST MINISTERS ON THE CONSTITUTION
Opening Remarks by
Premier René Levesque
Monday, November 2nd
Mr Chairman, colleagues. If we are today before perhaps a million Canadians, as you mentioned earlier, it is not only in an attempt to reach an accord – as you have already stated, of course – but also, principally in my view, because the provinces have been successful in establishing, through a judgment of the Supreme Court of Canada, that the constitutional proposal you are advocating substantially affects their powers and rights, and that this proposal is unconstitutional and contrary to the well-established convention whereby the powers of the provinces cannot be so affected without their consent.
In the eyes of those who have eyes to see, this judgment has removed all legitimacy from the federal proposal and has increased opposition to it, not only here in Canada but also in London, as has become apparent to everyone with the passage of time. The whole matter is in short quite clear, and only natural: no one wants anything to do with a constitution or a charter born of division and unconstitutionality and through the action of a foreign power. In Quebec in any case, there has been so much opposition on the part of our citizens that the two parties represented in our National Assembly have been able to pass unanimously a resolution calling on ottawa to renounce an action that is unilateral, even if it is not against the letter of the law. This resolution also opposes any action which could diminish the rights and powers of the Quebec National Assembly without its consent. And, finally, it calls for the resumption of negotiations, which is what we are hoping for at the moment, but in this case negotiations which comply with the principles and conventions that must govern any changes in the system.
I thus have the mandate of the Quebec National Assembly to ask the Prime Minister whether he intends to accede to this official request from the National Assembly, which was adopted unanimously by both parties, and whether he is ready to forgo his unilateral action and take part in the negotiations in compliance with the constitutional conventions clearly defined by the Supreme Court. In my opinion, valid negotiations or a reasonable chance of success will not be possible without such a change of attitude on the part of our opponents. I say this with all the more assurance since we, the eight provinces, have for our part come a long way in the past year.
A few moments ago the Prime Minister spoke of compromise. Since our last meeting in September 1980, more than a year ago, the provinces have not spent all their time opposing the federal plan; they have also worked to develop a formula which could break the current deadlock. Last April 16, eight of the premiers here today publicly signed a constitutional accord which makes immediate patriation of the Canadian constitution possible and provides a formula for future amendments. What is more, this accord commits the signatories to continue intensive constitutional negotiations, given good faith, over the next three years. This accord includes an amending formula which differs from the one in the federal plan. We believe that this new formula is an improvement on the old one because it is more dynamic and more flexible, and would enable the federal system to adapt better to futre circumstances.
We still hope that Ottawa and Ontario and New Brunswick will be able to accept the heart and substance of this accord, or at least agree to discuss it in food faith.
This therefore answers the two questions asked by Mr Trudeau earlier. Patriation poses no problems and we have an agreement on the table which places an amending formula acceptable to anyone of good faith within reach. What then is the problem? It is not the patriation proposal, but the unilateral upheaval found in what is called the charter of rights.
It is not a matter, of course, of Quebec or its government, any more than any government around this table – as was said earlier – being opposed to the recognition and protection of human rights and freedoms. The Quebec National Assembly is, in fact, at the present time engaged in a detailed review of Quebec’s own charter of human rights and freedoms.
The Justice Committee has met on a number of occasions to hear some fifty briefs on this subject, and a bill is going to be tabled during the dession that opens on Thursday which will complete the provisions of our charter, in so far as this is possible at the present time, and adapt them to the changing realities of our society.
There is absolutely no question, therefore, of claiming that the rights and freedoms of citizens should not be protectedl it is only that we have certain basic misgivings with regard to any charter of rights that would be entrenched once and for all in the Constitution. The more this possibility is contemplated, the more it is explored by the experts, the greater our conviction becomes that a constitutional charter of rights could in fact be detrimental not only to the proper administration of public affairs, but also, in the final analysis, to the rights of citizens themselves. The constitutional nature of such a charter would have the result of permanently transferring final judgment on a number of matters which, despite their legal aspects, are really political issues, to the courts, that is, to people who are not elected, but appointed, and who generally come froma rather limited segment of society.
The Prime Minister may have a different opinion regarding the merits of a charter entrenched in this manner, but, in any case, he ought to accept the fact that large numbers of those who defend rights and freedoms do not think as he does and prefer charters modelled after the current one — charters which are much more easily tailored to the times and which can be amended to suit changing patterns of thought and behaviour. In any event, however, what is essential, and make no mistake about this, is that any constitutional charter imposed on the people in an unconstitutional manner would, by this very fact, lose all its legitimacy and, in fact, all its exemplary value. Not only would this amount to a contradiction in terms, but it would be a legal and political absurdity as well.
This leads us into the heart of the problem. On a number of occasions, I have heard the Prime Minister state that the reason he absolutely had to act in this manner, and even unilaterally, in order to patriate the Constitution, was apparently that we have been talking about it for the past fifty-four years, and we still have not reached an agreement: and the reason, he goes on to say, that we are still deadlocked is that every time — it was not said this morning, but after all it should not be forgotten, since it has been constantly repeated — every time there is an effort to patriate the Constitution, the provinces demand that they be given more powers. As he tells it, it is this blackmail which has supposedly blocked patriation.
I will not argue this morning, for there is not enough time, about the often invoked fifty-four year period, nor the attitude allegdly held by the provinces, even though, in the normal course of events, I should do so if only out of respect for the truth. But I would say this to mr Trudeau — saving his presence — since the signing of the accord on April 16 of this year, neither he nor anyone else can still claim that the provinces are blocking patriation by demanind more powers for themselves in return. There is nothing in the accord of the eight provinces that increases the powers of the provinces by one iota. Patriation can be brought about without affecting the present division of powers and, if it is so desired, with the agreement of all the governments.
Therefore, the reason this agreement has not already been implemented is that the Ottawa government is not content with refusing to increase the provinces’ powers; it is now endeavouring to take advantage of the patriation process to diminish these powers, using the Charter of Rights as a facade behind which it can manoeuvre. If Ottawa were to drop this plan, an agreement could easily be reached in no time at all.
But I put it to you: how can the provinces be blamed for blocking patriation by tieing it to an increase in their powers, and how can those opposed to us at the same time prevent any agreement on patriation by tieing it to a decrease in provincial powers? If it was wrong for the provinces to demand more powers upon patriation, how can it be right or legitimate for the federal government to demand that patriation provide the occasion for a decrease in the powers? In other words, if patriation is to be separated from this issue of the division of powers, then this separation must work both ways.
If the federal government wants the provinces to give up using patriation as a tool to increase provincial powers, then it in turn must give up using patriation to diminish those same powers. And, with respect to compromise, we, the eight provinces, have gone more than halfway, in our opinion, by agreeing to dissociate patriation from any attempt to increase provincial powers. In Quebec’s case in particular, this increase in powers was promised during the referendum. In any case, this is what everyone in Quebec, and perhaps anyone else in Canada who was following events, understood. This is what everyone understood, especially those who, during the Quebec referendum, were on the same side of the fence as our federal colleagues here today, the Prime Minister and the Minister of Justice.
So, we believe that it is now up to Ottawa to meet us halfway by agreeing to separate patriation from the imposition of a charter which would diminish Quebec’s powers, as the Supreme Court clearly stated. In other words, the compromise we are looking for is already on the table, and if we act in good faith, we can all support it. However, if the federal government ever refused to do its part by giving up the idea of imposing its charter by force, its intentions would become frighteningly clear: it would become obvious that the federal government’s true goal was not patriation of the constitution, but rather the weakening of the provinces, and Quebec will never accept this. Our National Assembly – and I will repeat this – recently passed a resolution, with the unanimous support of both parties, to oppose such an action and you can rest assured that we will do everything in our power – and we still have some powers left – to prevent this from happening. We must not lose sight of the fact that, on top of everything, the current federal government has received no mandate from the public for the unilateral patriation or amendment of the constitution. Unless I am mistaken, the subject was never once debated during the last federal election, and I would like to remind Mr Trudeau that during the election when he did mention the possibility of such action – that is, the election of 1979 – his government was defeated. In addition, at his last press conference, the Prime Minister said, and I am quoting from last Saturday’s edition of Le Devoir; “I say that I am ready to go against a political convention and pay the political price for it. As a politician, I am willing to take that risk.” (End of quote)
Well, that amounts to saying that we are going to put off asking the Canadian electorate to decide upon the validity of this plan until later, until after the fact.
If this is the case, it seems to me that we do not have the right to present the Canadian people with a fait accompli. In all decency, the federal government must go to the Canadian people before it goes to London. Otherwise, it would be offending not only the federal principle, as the Supreme Court stated, but also the principle of democracy. This is equally, and perhaps even more, serious, since the possible defeat of the federal government after the British Parliament has intervened would do nothing to put things back the way they were or, in other words, restore the current state of affairs. We would have seriously weakened our National Assembly, which is a sovereign parliament in its areas of jurisdiction. The rights of this parliament are, in reality, the collective rights of all Quebecers; they are like the rights of all people: they cannot be impaired or limited without the consent of those concerned.
Thus, in my opinion, the people of Quebec will never accept an outside power coming in and, by force or by any other trick, taking away or in any way limiting any of their rights, because these rights are rights which are essential to Quebec in order to guarantee its economic development and cultural security.
Before finishing, I would like to remind Mr Trudeau that with respect to cultural security, contrary to what he has said – you’ll excuse me for stressing the point – not all levels of government would have their rights diminished – it would only be the provincial parliaments, since they are the only ones to have jurisdiction in the areas of education and access to schools.
I still harbour some hope – that is why we are here, is it not? – that this absurd situation and these extreme measures will not come to pass. It is possible to arrive quickly at a comprehensive agreement on the immediate patriation of the Canadian constitution. If this is truly the objective, then it is within our grasp. All Ottawa has to do is stop trying to limit the powers of Quebec and the other provinces – just as we had to give up (it was not of our own free will) trying to increase these powers in exchange for our support of patriation. This is, in effect, a test of good faith: is patriation the true objective or is it only a pretext, a cover-up, so that the federal government can shackle the provinces and diminish their powers even further?
If the federal government wants patriation, as it has said so many times, repeated to the point of saturation – this was the point of departure, this was the “real” reason – we will have no difficulty coming to an agreement. However, if it wants to strip us of our powers, that we will never accept.
Thank you, Mr. Chairman