April 20, 2012

Tainted birthday for Canadian charter

PETER BLACK, Canadian Dispatch

---- — There's a stain on the Canadian Constitution —- literally, and some say figuratively, as well.

A year after the document was proclaimed in 1982, a young artist asked to see a copy, kept at the National Library and Archives in Ottawa. When a clerk produced said document, Peter Greyson promptly poured red ink on it.

Greyson said he stained the document to protest the United States testing cruise missiles on Canadian soil — a big issue back in the day.

So, one of the two original copies the Constitution Act has a giant red blob on it. The other copy, the actual one signed April 17, 1982, by Queen Elizabeth in an open-air ceremony under rainy skies in the capital, has water damage and some smudged signatures.

On the occasion of the 30th anniversary of the signing of the Constitution with its attached Charter of Rights and Freedoms, commentators, lawyers and interest groups are lining up to sing its praises as the document that defines Canada and serves as a model to the world.

One report cites an upcoming article in the New York University Law Review that concludes Canada's Constitution and Charter have supplanted the American equivalents as the example for other nations to follow as they reform their democratic codes.

As much as the Canada's Constitution is admired at home and abroad, it has a problem, the aforementioned taint. Though it is a completely legal document in the eyes of the courts, the Constitution is lacking the official authorization and signature of the province of Quebec.

This seemingly perpetual conundrum is the result of the particular circumstances that led to the creation of a modern Constitution and Charter for Canada. The details may be fading from common memory, but the fact is the Constitution was the result of the federal government's effort to snuff out Quebec separatism.

In a textbook case of political chain reaction, the document that was signed on that soggy day in April finds its source in the political unrest in Quebec in the 1960s. The election of the secessionist Parti Quebecois government in 1976 led to a referendum on what was called sovereignty-association with Canada in May, 1980.

During the referendum campaign, then-Prime Minister Pierre Trudeau promised to reform Canada's Constitution if Quebecers voted against independence.

The No side did win the vote by a convincing margin, and Trudeau embarked on a determined campaign to patriate the Constitution — legally speaking, Canada existed under the British North America Act at that point — and create a muscular charter of rights.

The problem for Trudeau was the PQ was still in power in Quebec and faced with the dilemma of supporting renewal of the Canadian federation, a proposition that ran counter to the movement's raison d'etre of extracting Quebec from Canadian jurisdiction.

As a result, the Quebec government, claiming betrayal by a so-called united front of provincial premiers, refused to endorse the new Constitution.

When Trudeau left power in 1984, his Conservative successor, Brian Mulroney, was determined to redress this situation. He embarked on a fraught round of negotiations with the provinces that ended in a failed deal — known as the Meech Lake Accord — and a national crisis that eventually led to the election of a new PQ government in Quebec, the creation of the Bloc Quebecois separatist party on the federal level and, in 1995, another referendum in Quebec. This time the No side won by a razor-thin margin.

The legacy of the new Constitution from the Quebec perspective explains why both the federal government of a new Conservative prime minister and the government of Quebec were subdued in the midst of celebrations of the document's birthday.

Given its political sensitivity, no party on the federal front or in Quebec has expressed any interest in opening any time soon what's been called a Pandora's box of constitutional talks aimed at affixing Quebec's signature on Canada's primordial document.

In the meantime, some say the stain remains.

Peter Black is a radio broadcaster and writer based in Quebec City. He has worked on Parliament Hill in Ottawa, in Montreal as a newspaper reporter and editor, and as a translator and freelance writer. He can be reached at