It isn’t written on any calendar I can find, but I very much want to call April 17 Charter Day.
On this day in 1982, Queen Elizabeth II and the Prime Minister of Canada, Pierre Trudeau, sat at a table on Parliament Hill in Ottawa and signed two documents transferring all Canadian constitutional matters to Canadians. For a country that has prided itself on just getting the job done and being a little bland, it was a wonderfully fitting moment to finally gain full nationhood. It was like finally paying off the mortgage. For something involving Trudeau, it didn’t even seem to be too ostentatious other than it was outside in April in Ottawa, which isn’t the most pleasant place to be outdoors most April days.
It may seem odd to hear someone say they are proud of that moment. The constitutions that are most often written about like the American or French were borne of blood and sacrifice.
Canada’s written constitution does share a lot in common with those more famous, violently created documents. It was written by a bunch of affluent, middle-aged or senior white guys, most of whom were lawyers.
It also carried with it the aspirations of a people.
In Canada, when the constitutional process and document were being negotiated, memories of the Quebec referendum were very, very fresh. There was still a separatist Parti Quebecois government in the second most populous province in Canada.
We had tried in the early 70’s to modernize our parliamentary democracy and the relationships between the federal government and the provinces. At that time, the scars of a terrorist group in Quebec and the imposition of martial law during the October Crisis were oretty raw.
None of this seems like anything to be proud of.
The birth of Canada with things like the Charlottetown conference was, to be honest, a pretty dull thing. It certainly lacked the thrill of Daniel Shays’ Rebellion powering the Americans to negotiate their constitution in 1787.
In secondary school we learned about the relevant (translated as dull) constitutional milestones along the way: Proclamation of 1763, Upper & Lower Canada, the Rebellions of 1837, Lord Durham’s Report, the Northwest Rebellion, Canadians fighting under their own general in World War l, the conscription crisis, the Persons Case, the Statute of Westminster, Mackenzie King declaring war on Germany in 1939 a full week after Great Britain did. Throw in King-Byng and Rowell-Sirois for good measure. Oh, let’s not forget Newfoundland joining Confederation in 1949.
All very heady stuff when you consider that until 1982, the highest level of judicial challenges were made to the UK. Same thing if the provinces and the federal government couldn’t agree to changing the enumerated powers in the Constitution Act of 1867.
Many things were left off the table by the time that Her Maj and Pierre signed the papers 30 years ago. First Nations and women were largely ignored. Canadians demanded more to address indigenous peoples, but didn’t have as much ire to stand with women. LGBTQ equality wasn’t even a gleam in any of the negotiators’s eye.
Quebec refused to sign on and still does. There have been 2 rounds of constitutional negotiations since that April day and a national referendum to fix a variety of problems that people thought needed fixing. There have been some bilateral agreements to change things like separate school systems in some provinces, but the document and country are still intact.
Why would anyone be proud of what sounds like a tedious, undramatic process that resulted in some paper?
For me, I was never more proud to be a Canadian because 30 years ago we accomplished two wonderful things. First, Canadians were finally in charge of our country. When reminded time and again during the 70’s sitting in class, I found it humiliating that we as a nation were not found capable of making the final decision on matters solely Canadian. I am sure the British recognized the bizarre situation of nations decolonizing in Asia and Africa but Canada could never get the courage up to just ask for independence
An important part of getting complete control of our constitution and law-making abilities is the second reason I have never been more proud to be a Canadian: the Charter of Rights and Freedoms.
Many people leading up to the patriation of the constitution were opposed to the Charter. Some people, like my father, thought it would make us more like Americans. To him that was code for the excesses of the individual trumping the community. Others believed it would lead to a weakened parliamentary system, meaning that governments could do nothing.
On that latter point, many people have viewed a litany of court challenges as tying the hands of duly elected governments and led to the rise of the courts which blunt the will of the people.
I see it very differently.
Charter challenges, as we often call them in Canada, are about individuals telling governments that they aren’t living up to the promise of democracy. I see the courts as being the only long-lasting remedy to ensure that our rights are not being taken away by governments.
There are many people who think that the Charter has become a way of letting criminals go free, but those people aren’t thinking about the flipside of that coin; that we do not want the innocent to go to jail. We are not that far removed in this country from the Japanese being sent to concentration camps and having their homes taken by the state during wartime. Nor is the forced sterilization of people thought to be inferior perpetrated by Alberta that far behind us. Truth be told, the memory of martial law in Quebec is still clear enough for some.
Many Canadians will point to the “notwithstanding clause” as a way for Canadian governments to get around the courts if they become too activist. Some see it as a threat while some see it as way for parliament to retain its primacy. Notwithstanding allows a government to pass laws that effectively ignore a court decision on a matter. Outside of Quebec where the “notwithstanding clause” was incorporated into every piece of legislation for a while, pretty much to tweak the nose of the federal government, politicians have been loathe to use it. Even those most opposed to judicial freedom seem not to want to start down that road.
In what seems like a typically Canadian way, we have found a bureaucratic and bland way to ensure our rights are respected by governments.
Bland it may be, but for some of us the simple fact of having our own constitution and an enumeration of what we expect governments to protect makes us proud to be Canadians.