Canada’s Constitution to come home?

Press, 23 October 1980, Page 16

Canada’s Constitution to come home?

You. can expect to see a charter of rights enacted by the.-British Parliament within the next few months. This will among other things, entrench certain minority language rights. But the British need not get too worked up about it all. It will affect only Canada. Surely Canada has been a completely independent nation for many years? Yes indeed, but its Federal Constitution is still, in form, a Statute enacted at Westminster. the British North American Act of 1867 — modified over 113 years by some 20 amendments and additions, each of which has had to be approved in London.

Not that the British have wanted to stop Canada taking its Constitution away — “patriating” it, as Canadians say. The Canadians’ trouble is that they have never agreed on a set of rules for amending the thing themselves; and they have, wisely, preferred the indignity of remaining on the end of an old imperial apronstring to the horror of getting stuck with an unchangeable Constitution. Since 1927, their Federal and provincial Governments have wrangled over an amending formula. In 1971, at a conference in Victoria, 8.C., they momentarily achieved consensus on one; but Quebec then decided'rit could not swallow it after all. Last month the ump-

From the “Economist,” London

teenth Federal-provincial meeting ended in the umpteenth deadlock. Mr Pierre Trudeau’s Liberal Government then decided that Canada, literally, could not go on like this. Not just because of the indignity and the wrangling but because of the current threats to the country’s unity. To avert those threats, the Government sees an urgent need to entrench in the Constitution a charter of rights and freedoms. Its draft charter provides, for instance, assurances about English or French schools for the provinc e s ’ minority-language communities.

Earlier this month, the Ottawa Parliament reassembled to discuss the Government’s proposals and two Canadian Ministers expounded them to Mrs Thatcher in London. If the Trudeau train runs to time, Canada’s Parliament will ask Britain’s, before or after Christmas, to enact legislation adding the charter of rights to the Canadian Constitution, setting out future amendment procedures, and turning the whole thing over to Canada at last.

.Before then, the British are going to be lobbied by assorted Canadian opponents of this package. Mainly by provincial politicians (only Ontario has welcomed the Trudeau plan), but probably also by Federal Conservatives (whose leader, Mr Joe Clark, has promised to

fight it). It is clear, however, that long-established convention, and sensible politics, bind the British Parliament to respond to a request from the Canadian one for amendment of the British North America Act.

But although the British cannot now go back on a practice that has been observed ever since IS6B (when they rebuffed an attempt by a province to challenge the British North America Act itself), they are likely to have to listen to many loud objections to the proposed legislation. The charter of rights is already under heavy fire, both in Quebec and in some other provinces, which fear, for one thing, that their Frenchspeaking minorities would be enabled to bring demands for more French schools to the Federal courts.

The proposals about a future amending formula have also aroused criticism, although they are so framed as to make it hard to argue that any region would be overridden. For two more years the Federal Government and the 10 provincial ones would continue to seek unanimity on a formula.

Until those two years were up, amendments would need the consent of all 11 legislatures. If by then the

Government or legislators of eight provinces containing SO per cent of all Canadians (which would thus have to include Quebec) had agreed on a formula, a referendum held within the following two years would choose either that formula, or an alternative one that might be offered by the Federal Government, or a "modified Victoria” one.

If no eight-province proposal was ready by the end of the first two years, the “modified Victoria” formula would at once take effect. All future amendments would then need to get the consent of Parliament and (either by votes in legislatures or by a referendum) of a heavily qualified majority of provinces — necessarily including Quebec, Ontario and at least two Atlantic and two Western provinces. Phew. It looks as if. however this might work out. amending the Constitution would become harder than it has been all this time when there has been no agreed amending formula. No wonder Mr Trudeau wants to get the charter of rights through now, while his Liberals have a clear majority at Ottawa and the procedure is. still relatively simple, even if it is anachronistic. But don't imagine that his package is bound to get through easily just because no Canadian could really oppose the idea of “bringing the Constitution home” after 113 years.