The Canadian Charter of Rights and Freedoms was a magnificent political improvisation by Pierre Trudeau to deal with the independence movement in Quebec. Even the hint of it was a brilliant stroke to move him up the queue from freshman MP and minister of justice to Liberal leader and prime minister, in 1967 and 1968. A brief jog through the political history of Quebec is necessary to appreciate why the Charter, notwithstanding its many flaws, produced Trudeau's desired political goal.
For many years, successive Quebec leaders, including Louis-Alexandre Taschereau, Maurice Duplessis, Jean Lesage and Daniel Johnson, who between them dominated the politics of Quebec for almost the entire half-century ending with the death of Johnson, agitated for greater rights and powers for Quebec, especially in the concurrent field of direct taxation.
After five years of good-faith but fruitless negotiations to divide the income- tax pie with Ottawa, Duplessis announced in 1955 that Quebec would impose and collect its own income tax, and that if Ottawa did not admit a deduction for Quebec taxes from what Ottawa collected from Quebec taxpayers, he would invite the voters of Quebec to determine, in both federal and provincial elections, who was responsible for their condition of double taxation.
The federal prime minister, Louis St. Laurent, backed down to the extent of allowing a 5% Quebec tax on personal incomes, but muddied the waters of this first federal jurisdictional concession, by introducing the equalization and stabilization payment programs.
Equalization created a new playing field of federal-provincial competition, as the federal government began the official transfer of tax-collected money from wealthy provinces to have-not provinces. In practice, this mainly was an impost on Ontario and Alberta for the benefit of Quebec, all in the higher interest of federalism. The long process of buying Quebec's votes for federalism with Toronto's and Calgary's money had begun. It would meander though 50 years, all the way to Adscam. In fact, under Duplessis, for the only time in the history of Canada before or since, Quebec was steadily gaining on Ontario by most economic measurements.
Contrary to widespread mythology, this was the reason why Duplessis won an unprecedented and subsequently unequalled five elections as premier of Quebec, not because of any of the nonsense about the Union Nationale (the party he founded) electoral machine, (although it was well-organized and - funded, as were its Liberal opponents), much less the bunk about Duplessis mesmerizing Quebec with primitive demagogy or co-ordinating with the Roman Catholic Church the dragooning of a docile electorate gerrymandered in over-represented rural constituencies.
All of this was part of the great Liberal mythology, propagated faithfully, and presumably credulously, by prime minister Lester Pearson, who did not speak 50 words of French and had no idea how that province functioned politically; and less innocently by Pierre Elliott Trudeau, who had followed a long but swift trajectory from admiring Mussolini, even when this country was at war with him, to a leftish model reinforced by his post-war visits to Stalin's U.S.S.R. and Mao Tse-tung's China.
Duplessis pushed St. Laurent to a 10% division of tax, over deafening Liberal protests that Duplessis was debasing and undermining Canadian federalism; and moved St. Laurent's successor, Progressive Conservative prime minister John Diefenbaker (who owed most of his 50 Quebec MP's to Duplessis) to 13%.
After Duplessis and his chosen successor, Paul Sauve, both died in office, the Liberals under Jean Lesage, in John Robarts' phrase, "bulldozed" Pearson, and Quebec jumped to a 50% split of personal income tax revenue in Quebec with the federal government. What Duplessis the Union Nationale trouble-maker had sought and St. Laurent the Liberal guardian of Canadian federalism had bravely resisted, Lesage the Liberal modernizer of Quebec took and Lester Pearson the Liberal saviour of that federalism acquiesced in gladly, in the higher interest of Canada (and the Liberal Party).
This was the back-drop for the Canadian Charter of Rights and Freedoms. Johnson, Duplessis' most assiduous disciple, defeated Lesage in 1966, and Trudeau succeeded Pearson as federal liberal leader and prime minister of Canada in 1968. Johnson continued the tradition of Quebec nationalism being led by fundamentally conservative people, as it had been by Henri Bourassa, Lionel Groulx and Duplessis, men who believed in the constitution and institutions of the country, the Church, and a gradual approach to the redistribution of powers in Canada. They all had a delicate task, as they wished greater powers for Quebec in Canada, but did not wish to threaten Quebec's separation, which Duplessis described (rather accurately) as "a scandal, a profanation and a fraud."
When Johnson died in 1968, the torch of Quebec's nationalism passed from the moderate right to the left, led by Rene Levesque. Trudeau set out to disarm the nationalists (i.e. separatists, which most of them threw down the mask and proclaimed themselves to be), by announcing that what was important was not the distribution of powers between levels of government, but rather the rights of man. It was a magnificent Rousseauesque touch, that had caught the normally extremely agile Johnson flat-footed.
Trudeau brilliantly postured that Quebec politicians were merely interested in self-aggrandizement; while he, Trudeau, was concerned with universal principles. His goal was cast as a badge of civilization-- in contrast to the money grubbing of patronage-stained provincial politicians. It was theatrical and exaggerated and not entirely successful, but it knocked the anti-federalists off balance for some years. When the first referendum on Quebec sovereignty was held in 1980, Trudeau promised that if Quebec rejected Levesque's trick question, he would repatriate the Canadian constitution and entrench a Charter of Human Rights in it. He deflected and confused much of the debate in the referendum campaign, and led the federalists to a 60-40 victory, which implied an approximately even split among French Quebecers.
As an instrument in the battle for the hearts and minds of Quebec, the Charter was brilliant. As an article of fundamental Canadian law, it has been a disappointment. It invites every gimcrack judge in Canada, (a large infestation in our court houses, unfortunately), to become social tinkerers, self-righteously empowered to remake society along trendy or idiosyncratic sociological lines. The Charter has vastly increased the volume of litigation and the justiciability of secondary issues, with no discernible increase in individual liberties, rights, or freedoms. Any federal initiatives in the key areas of property and civil rights can be vacated by the vote of a provincial legislature in that province, leaving the rights and freedoms the Charter defends rather moth-eaten.
And there is no ringing language to resonate in the ears of Canadian school-children. One would have hoped for something as lapidary as "We the people, in order to form a more perfect union," etc., or "When in the course of human events," leading to "we hold these truths to be self-evident," or even a variant of Rousseau's "Man is born free but is everywhere in chains." Even the old British North America Act's somewhat pedestrian "peace, order, and good government" peals like Jefferson's "fire bell in the night" compared to the Charter's "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law." In fact, almost all that is derived from the Charter is atheistic and legally contentious.
I wish I could be more festive in my observation of a quarter-century of the Charter. It succeeded in its immediate objective of confounding the separatists. But as a fundamental and inspiriting embodiment of original Canadian concepts of individual freedom, it is banal and largely ineffectual.
I could raise half a flute of Champagne to the 25th anniversary of the repatriation of amendment of Canada's constitution, with an additional heartfelt sip for the rout of Quebec's separatists, but as a literary and legal document, in its words or consequences, no rigorous Canadian should imagine that the Charter makes it.