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Charter35: Senators share stories on contributing to Canada’s Constitution
Charter35: Senators share stories on contributing to Canada’s Constitution
April 16, 2017
OPINION
Image of Serge Joyal
Serge Joyal, Quebec
Image of Marilou McPhedran
Marilou McPhedran, Manitoba

In 1981, Prime Minister Pierre Trudeau and the premiers of Canada’s provinces were deeply involved in negotiations to create a made-in-Canada constitution, since the country’s foundational document was actually a law passed by the British Parliament in 1867.
Four members of today’s Senate were involved in that process in 1981 and 1982 — long before they were appointed to the Senate.
Here’s what they recalled about that time, 35 years ago.

 

Senator Charlie Watt: Reflections on the Constitutional Talks

Heading into 1982, I was the president of Makivik Corporation, which managed the proceeds of the then-recently-signed James Bay and Northern Quebec Agreement for the Inuit. Because of our success at the negotiating table, Inuit had access to money and resources to support our ongoing work. I was fully staffed with teams of lawyers and professional people and had unique access to the 1981 constitutional talks..

The Aboriginal communities saw me as the guy with the answers.

Over the course of many months, we worked to enshrine the recognition of Aboriginal people in the Constitution. It took us about a year before the First Nations, Inuit and Metis worked together fully. Towards the end of the negotiations, there was a meeting behind closed doors where the government dropped the resolution dealing with Aboriginal rights. We were devastated.

The following morning, I went to 24 Sussex to challenge then-prime minister Pierre Trudeau with then-MP Peter Ittinuar and Inuit community leader John Amagoalik. The best he could offer was to hold off on a decision for a week — this allowed us time to lobby the premiers for their support.

We had great support from the CBC and from people at the community level. I felt we did a good job. Although the premiers were reluctant to fully embrace our proposed resolution, they finally came around when then-Alberta-premier Peter Lougheed convinced the group to add the word “existing” to our statement. This cooled the discussion, and we ended up with the following section included in the Constitution Act, 1982:

“35(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.

(2) In this Act, “Aboriginal Peoples of Canada “includes the Indian, Inuit, and Métis Peoples of Canada.

(3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”

This was the first time in Canada we had national recognition for our people.

Charlie Watt is a senator representing Inkerman, Quebec. He was President of Makivik Corporation in 1982.

 

Senator Charlie Watt, 1984

 

 

Senator Serge Joyal: 35 years later, a new country

The Charter of Rights and Freedoms was a foundational moment for Canada in the 20th century. It redefined the basis of Canadian society, affirming that human rights and freedoms are at the core of what it means to be Canadian.

In 1982, Canada ushered in a new era. From that point on, laws adopted by Parliament and the provincial legislatures would be assessed based on whether human rights and freedoms were respected. It was no longer enough for laws to be adopted by a parliamentary majority—to be legal, they would also have to respect individual rights and freedoms.

The courts were given the responsibility of ruling on alleged violations of rights and freedoms. Canadians have taken the protections granted under the Charter very seriously.

Between 1984—the first year in which the courts made a decision on Charter rights—and 2017, Canadian courts at all levels have made 22,203 decisions that are in some way related to the provisions of the Charter.

In addition, a financial support program for legal challenges was established in 1984, which gave citizens whose rights were affected by a decision the financial support they needed to champion their rights before the court and obtain a remedial order.

Indigenous peoples, people with disabilities, women, visible minorities, sexual minorities and language minority groups have greatly benefited from this support. Several hundred cases have been funded and have led to the rule of law being re-established, reaffirming that each person, no matter what their identity, deserves to be respected and recognized as such.

Citizens themselves drive this ongoing evolution. This innovative approach, the only one of its kind in the world, helps give Canadian citizenship a unique quality: social integration happens fluidly, and Canada can easily adapt to new circumstances in a world that is constantly evolving.

The Charter has truly helped shape a new country where equal rights and the guarantee of freedoms for each person enhances our sense of identity as Canadians.

Serge Joyal is a senator representing Kennebec, Quebec. He was secretary of state of Canada in Prime Minister Pierre Trudeau’s cabinet in 1982.

 

Senator Harry Hayes and the Hon. Serge Joyal, then an MP, were co-chairs of the joint committee on the repatriation of the Constitution, 1981

 

Senator Dennis Patterson: Ensuring a northern voice

I will forever remember the rainy day of April 17, 1982, when Queen Elizabeth II and Prime Minister Pierre Trudeau signed the repatriated Canadian Constitution under an outdoor awning on the grounds of Rideau Hall.

As a cabinet minister in the Northwest Territories government, I was thrilled to be there with our territory’s Aboriginal leaders, for this event celebrated months of frantic efforts, including one occasion when the entire Northwest Territories legislature chartered an NWT Air Electra flight to Ottawa to lobby the Senate and House of Commons for the reinstatement of Aboriginal Rights in Canada's new constitution.

Such a section had been deleted from an earlier draft of the Constitution following a secret meeting in a kitchen with the country’s premiers, so territorial leaders were very pleased when section 35, recognizing the rights of the Aboriginal Peoples of Canada, including First Nations, Inuit and Metis, was brought back into the final draft, with the addition of the modifier 'existing' Aboriginal rights, which our legal advisors assured us was innocuous and meaningless — merely a face-saving way for the premiers to justify their earlier treachery.

This was the territories' finest hour. We had played our part in reinstating Aboriginal rights, though were ultimately unsuccessful in a Supreme Court case to unilaterally change the rights of territories vis-à-vis the provinces. In the end, the inflammatory clauses 42 (1) (e) and (f), allowing for the creation of provinces or annexation of the territories by seven provinces still remained. Fortunately, subsequent, constitutionally-protected land claims agreements signed in the territories will probably prevent those sinister sections from ever being employed.

The inclusion of Aboriginal rights in the new constitution, which we celebrated that rainy day, was a shining moment for Aboriginal Canadians, though the full hope and promise of defining those rights is still slow to be realized. 

Dennis Patterson is a senator representing Nunavut. He was MLA for Frobisher Bay and Minister of Aboriginal Rights and Constitutional Development in the Northwest Territories in 1982.

 

Senator Marilou McPhedran: Citizens too can write a constitution

Constitution-building is often seen as the job of government and government alone, but that’s not an accurate depiction of what happened in Canada leading up to the Constitution Act of 1982 and its entrenched Charter of Rights and Freedoms. This was not just a ‘dialogue’ between governments and judiciary, but a ‘trialogue’ — with changes to our constitution coming directly from the people.

There’s footage of the 1981 joint committee that was co-chaired by then-MP Serge Joyal (now Senator Joyal) and then-senator Harry Hayes, including the moment when Canada’s largest women’s organization, the National Action Committee on the Status of Women, was presenting. I was there as a volunteer legal counsel. We laid out the ways in which the draft wording was disastrous for women with specific case examples.

After this sophisticated presentation by women leaders, the co-chair, Senator Hayes, asked what was going to happen to children if we weren’t home to take care of them. That was a galvanizing moment across the entire country because the committee was the first to be televised. Millions of Canadians were watching. It became the mobilizing force — a pivot to take this from being a closed, controlled and rushed process to a situation where thousands of women across Canada rose up for equal rights.

And the way we sustained this process was to be volunteers. My income that year was $8,000. The only way we could maintain our presence on the Hill was to engage as citizens and not be paid. We knew this was our one kick at the can, even though we knew we weren’t welcome. While waiting for security, we noticed some women moved about largely invisible to the guards — the secretaries. So we started dressing like them, carrying steno notepads around and smiling as we walked past security checkpoints. That’s how we accessed meetings with parliamentarians!

By the time we had built the support and consensus, the bill was at third reading with little time left before it would become law. We needed unanimous approval at the final stage essentially — something almost impossible. But we did it. An amended section 28 was included, stating that all Charter rights are guaranteed equally to “male and female persons”.

But a law is empty without implementation, so we had to create a mechanism to litigate the new equality rights — otherwise judges would continue to ignore equality. That’s how we created the Women’s Legal Education and Action Fund — still vital after 30 years.

Marilou McPhedran is a senator representing Manitoba. She was an activist and legal advisor to the National Action Committee on the Status of Women in 1980, a co-chair of the Ad Hoc Conference on Women and the Constitution in 1981-1982 and a co-founder of LEAF, the Women's Legal Education and Action Fund.

 


Marilou McPhedran, Ad Hoc Women's Constitutional Conference, Parliament Hill, Feb. 1981