Stephen Harper's Spite of Charter, 30th-anniversary edition

The prime minister is hardly trash-talking the constitution here

Adrian Wyld/CP Images

There was very little interesting about Stephen Harper’s decision not to fête the 30th anniversary of the Charter of Rights until he spoke about it.

Simply declining to celebrate an anniversary is no sin. Every day is an anniversary of something, and it’s a handy rule of thumb that quarter-centuries are best for festivity, or mourning, or any kind of acknowledgment. It’s true that Harper conspicuously didn’t celebrate the quarter-century of the Charter in 2006, but he was two months into office then and his government wasn’t exactly breathtaking in its agility. [UPDATE: Well, that’s wrong. It was 2007. Insert some other mitigating rhetorical dance here. -pw ] Plus it’s a bit weird to use coverage of failure-to-commemorate-the-30th as a pretext to remind everyone of failure-to-commemorate-the-25th.

So, silence would have done little to placate people, including certain of my colleagues, who are pacing back and forth looking for something to be furious about. But it would have been essentially uninteresting. His motives would have been a matter of conjecture, and conjecture’s no fun in the absence of evidence.

But now he’s spoken and things are more interesting. From CP reporter Jennifer Ditchburn’s account of the PM’s remarks in Chile:

“‘In terms of the anniversary, the Charter was an important step forward in the development of Canadian rights policy, a process that began in earnest with (Conservative prime minister) John Diefenbaker’s Bill of Rights in 1960, so it’s a little over 50 years old,’ Harper said.

“Diefenbaker’s Bill of Rights was not entrenched in the Constitution and did not carry the same weight in the courts as the Charter eventually did.

“Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the Charter was a part. Two other attempts to bring Quebec into the constitutional fold — the Meech Lake and Charlottetown Accords — failed.

“‘In terms of this as an anniversary, I think it’s an interesting and important step, but I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country,’ Harper said.

Well. The prime minister is hardly trash-talking the constitution here. He calls the 1982 amendments “important” and “interesting” and “important.” He does sound a bit wary and forlorn about the lack of consensus. Already, on the ravenous global Twitter chatterbox, colleagues are upset that he is parrotting Quebec nationalists’ rhetoric about “divisions…which are still very real” around patriation.

I’m afraid my feelings are mixed. I believe the Charter is a good thing. It gives citizens power no government can take: its effect is often profoundly libertarian. I believe repatriation was a bit of a schmozzle, but when you have an embittered defeated Péquiste at the table, an already inelegant process is likely to become even more of a mess, and that’s life. (Harper was speaking in Chile. Take a look at their constitutional gong show.) I was supposed to speak at a conference on repatriation last week in Montreal, and I begged off because of time constraints, but I didn’t mind begging off because I didn’t really feel like challenging the local sooky consensus. “Woe is us!” “Humiliation and woe!” “Pain and suffering!” “And now, Paul Wells.”





But there is no necessary or even frequent connection between emotions and evidence, and emotions are real. And it’s hardly just in Outremont’s more self-indulgent salons that the Charter is seen as a bad show. When the newish Conservative party had its first convention in Montreal, the foundering Western Standard magazine distributed lapel pins with “It’s the stupid Charter!” on them. I’ll leave it to the magazine’s then-editor, Kevin Libin, to explain what the point of that was, because as the linked article shows, Kevin was pretty good at finding everyone else’s explanations wrong.

But my point, or part of it, is that there’s no consensus in the country around even as mildly rah-rah a conception of the Charter as mine. Harper’s first chief of staff, Ian Brodie, will by now be getting tired of my pointing out that his PhD thesis asserted a Liberal-judicial racket to make sure the Charter gets interpreted a certain way.  Harper’s fellow firewall theorist, Ted Morton, wrote a book with Rainer Knopff, who in 2010 helped Harper find a new governor general, that says all kinds of un-celebratory things about the Charter. The Court Party of the book’s title is, more or less, Brodie’s “Friends of the Court:” “a well orchestrated network of state-funded interest groups that use litigation and the media to achieve what they can’t win through democratic elections.”

Morton is currently having a bad few weeks on the campaign trail, but at one point in his academic career he was using “Reform Party” as a direct antonym for “Court Party.” Morton’s “Reform Party” wasn’t perfectly synonymous with, you know, the Reform Party, but the differences were slight.

Anyway, no consensus. Some people think the repatriation, or the Charter, was problematic. What’s striking here is that Harper chooses to honour and reinforce the lack of consensus. That’s a choice he made. It’s hardly unusual for a prime minister to reinforce a consensus, or to assert there’s one where there wasn’t before. In 2004 he abandoned his earlier opposition to (one could say “Trudeau-style”) official bilingualism, and when his friend and colleague, the MP Scott Reid, didn’t zig when Harper zigged, the Conservative leader essentially cut Reid off from further significant party roles.

Then in 2006 he appointed the journalist Graham Fraser as languages commissioner. Fraser’s language politics are Trudeau’s when they aren’t tinged with a greater sympathy for Quebec nationalism than Trudeau could muster. It would have been profoundly out of character for Harper (“as a religion, bilingualism is the god that failed”) to put that guy in charge of official languages as late as two years before he did. But Harper didn’t want a fight on those grounds, so he not only changed his stance, he enforced the change, to the chagrin of once-valued colleagues like Reid.

He’s done the same on smaller files — supply management, certain Elections Act provisions he used to find draconian, and so on. The most striking example of Harper’s embracing formerly alien symbols is the flag, adopted by Pearson while Diefenbaker wept, now a central part of Conservative iconography.

He could have done the same with the Charter. No, the Charter is not “the Constitution,” as people who accuse Harper of snubbing “the Constitution” claim. It’s part of the complex and evolving Canadian Constitution, which otherwise includes longstanding treaties with the First Nations, inherited British constitutional convention, large unamended sections of the 1867 British North America Act, and every week’s new jurisprudence at the Supreme Court. But for that reason, it would not have been hard or costly for Harper to embrace Trudeau’s Charter as easily as he has embraced Pearson’s flag.

He’s chosen not to. Decide for yourself whether to celebrate or mourn. I’m left with one nagging worry. In about a year Quebec will probably have a Parti Québécois premier, Pauline Marois. This is probably not a big problem: she’s likely to bump along, pushed by her party base to hold a secession referendum but unable to do so because of lousy polls. It’s always good for Canada when the PQ tears itself apart. But things could get weird, and another secession referendum can’t be ruled out. In that environment, a Harper charm offensive wouldn’t get far, because few Quebecers find Harper charming. He’d have to fall back on the law, including the Supreme Court’s opinion in the Secession Reference. Given the potential stakes, I’d rather he didn’t use the constitution to fight political battles.

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