Lost Opportunity: Could Trudeau have prevented recent constitutional tensions from happening?

In what amounted to another episode of our perpetual Canadian drama, the notion of “reopening” our Constitution was once again in full view last week, this time resulting from the Bloc Quebecois' (BQ) parliamentary motion calling on the Canadian state to detach itself from the British monarchy.

Before the Bloc motion was soundly defeated in the House, Prime Minister Justin Trudeau signaled how his party intended to handle the BQ's indirect constitutional request, by stating “There isn't one Quebecer who wants to reopen the constitution.”

With the ongoing cost of living crisis dominating the political agenda for all other mainstream parties, pursuing any constitutional reform at this juncture would be difficult to entertain without quelling the more pressing fires, to say nothing of the fact that removal of the British Monarch as the country's head of state would also unlikely obtain the required unanimous consent from the House of Commons, Senate, and all provincial legislatures, as called for in the Constitution Act 1982, Section 41 (a).

Putting aside the monarchy question, more broadly speaking, there can be circumstances at times that should compel exploration and possible amendments to our Constitution, if it is necessary to do so. Evolution is not a bad thing, and simply because something may appear to be difficult to achieve (and Constitutions should be difficult to amend!), does not mean it is not worth exploring, if it will ultimately be for the betterment of the country. But this generally requires vision, leadership, and courage, yet instead what typically rules the day is political expedience.

This is especially pertinent when examining the record of the Trudeau Liberals, as they have shown a propensity for knee-jerk reactions by either dismissing or avoiding anything related to the Constitution, when circumstances have compelled for its defense, let alone exploring the ways in which it can be improved. Trudeau's handling of Quebec’s Bill 21 being an ample demonstration of this passivity, whereby his government stood idly by while Quebec imposed a ban on wearing religious symbols for all its civil servants, leaving it to those individual Quebecers to file legal challenges against its government for violating Charter rights, with no immediate assistance from the Trudeau Liberals.

And this was permitted without even a possible judicial reference to the Supreme Court of Canada to rule on its legality, which has been a useful weapon in the federal government's arsenal prior to Trudeau's arrival to power, though returning judicial interpretations have not always sided with the federal government, it nonetheless does provide the legal clarity on how to proceed for any given matter.

In review of the monarchy though, Canada's democratic institutions have generally been stable and well served within the operations of being a constitutional monarchy, and it is inextricably the case that those who are fervently opposed to having such an arrangement would be harder pressed to then find consensus on what the alternative should look like. And so, while Trudeau was correct not to engage with this latest pursuit by the Bloc, it is only because his initial posture to such constitutional matters has always been the same, aversion - a point to be demonstrated again shortly in this analysis.

The indirect proposition by the Bloc was not the only recent tension point seen in our constitutional politics. Quebec Premier Francois Legault has systematically mounted a full assault on the Canadian Constitution, first with the aforementioned Bill 21, but most particularly the passing of Bill 96, which asserts that Quebec can unilaterally amend the Canadian Constitution, by declaring itself a “nation” and French as its only official language, while also limiting the use of English in courts, public offices, schools, hospitals, etc., with the sole intention of enforcing the primacy of the French language.

As written in a previous article of this newsletter, Legault's real intention has been to establish a new iteration of Sovereignty-Association, emboldened by the pre-emptive use of the notwithstanding clause within the Constitution, which in itself denotes aspects of the bill being inherently discriminatory.

While some might argue the notwithstanding clause is a legitimate tool in the constitutional toolbox, what has remained unclear and problematic is its pre-emptive usage before any prospective legal challenge, and whether this goes against the intended spirit of the clause. According to Justice Minister David Lametti, the notwithstanding clause “was meant to be the last word in what is, in effect, a dialogue between the courts and legislatures. It wasn't meant to be the first word,” but as alluded, clarity around the proper application may need to play itself out in the courts.

All of these recent constitutional impositions does beg the question, how did we get here? And more importantly, could these recent tension points to our constitution have been prevented from ever happening? To answer these questions, it is worth tracing back to what the political landscape was in Canada a mere decade ago.

On the night Prime Minister Stephen Harper's Conservative Party had won a third term and its first majority mandate in 2011, the BQ had been reduced to a feeble four seats, losing official party status. For a party whose sole purpose was to advance the separation of Quebec from the rest of Canada, this electoral repudiation of the BQ (for a number of different reasons) was a statement overall that the idea of sovereignty in any form was dead in the water. This was further aided by also having a strong federalist in Jean Charest (former federal Progressive Conservative leader) governing in the province of Quebec, though his popularity had started to wane having approached nine years in office himself.

Nonetheless, while nationalism had always remained an unabated force in Quebec, the sovereignty issue dissipated under Harper for two principal reasons.

First, Harper governed using a practice he coined as “open federalism,” a concept which belies the impression of its name, it essentially restricts each level of government to its own jurisdictional responsibilities, while respecting the expertise of the provinces to act within their own areas of jurisdiction without federal intervention. More simply put, the federal and provincial governments kept confined to their own jurisdictional lane without any overlap. For Quebec, this hands-off arrangement worked well, as previous federal interventions with use of its spending power has always been a bone of contention for the province.

Secondly, the Harper Conservatives passed a motion in the House in 2006 declaring Quebec “a nation within a united Canada,” which achieved the dual benefit of acknowledging special political recognition being sought without the mega constitutional negotiations, while also having no legally binding implications, unlike the ‘distinct society’ clause proposals found within the Meech Lake and Charlottetown Accords.

Between the symbolic bestowing of special recognition for Quebec, a complete respect for jurisdictional responsibilities with no threat of any federal encroachment, and the eventual neutering of the BQ as a force in federal politics, the national unity issues that plagued other administrations had nearly evaporated during the Harper years.

But after a near decade in office, the Canadian electorate grew tired of Harper's dogmatic and hostile approach to governance, and so the pendulum swung in favour of the Trudeau Liberals in 2015. This change in itself did not cause any serious rupture within the federation at first. However, early into his tenure, Trudeau was presented with a unique opportunity to potentially strengthen the binds of the existing unity for the country.

In 2016, then Quebec Premier Phillipe Couillard, a devout federalist, wanted to finally rectify the circumstance of Quebec not being a signatory to the 1982 Constitution Act, by signing the Constitution, symbolically on the 150th anniversary of Canada's Confederation.

Legally speaking, Quebec is technically not “out” of the Canadian Constitution because it did not sign, but it has been a historical grievance serving as a lynchpin for separation. This was evident during Prime Minister Brian Mulroney’s attempt for constitutional reform with the Meech Lake Accord in 1988, where Parti Quebecois leader Jacques Parizeau acknowledged to Lucien Bouchard in a secret letter that Meech Lake's success would mean the end of the separatist cause. That said, procuring Quebec's signature on the Canadian Constitution would symbolically affirm its fidelity to the Canadian state, and would severely undercut the case for sovereignty.

To that end, Couillard introduced a robust policy paper entitled, Being Quebecois: It's our way of being Canadians, which set out five conditions for Quebec's signature:

1. Recognition of the distinct society

2. Limiting federal spending power

3. Appointment of three justices to the Supreme Court of Canada

4. The right of veto

5. Increased powers over immigration

These echoed the same conditions Quebec spelled out during the Meech Lake negotiations, but at the time Couillard presented this, many of these elements were already happening in practice to a large enough degree that the constitutional proposal could be seen more as a formalizing exercise.

Interestingly enough though, Couillard's document explicitly outlined that recognition of Quebec's distinctiveness was not intended to afford more powers not otherwise provided to the other provinces, nor does the document insist that this constitutional recognition be contained in an interpretive clause, which were one of the pitfalls with both Meech Lake and Charlottetown.

As Pierre Elliott Trudeau himself had asserted during his infamous opposition to the Meech Lake Accord:

“...when you deliberately do not put "distinct society" into a preamble but put into an interpretative clause, that can mean only one thing - you are giving to the government of that distinct society powers that it did not have before.”

That is to say, so long as the inclusion of “distinct society” or “nation” was to be contained within the scope of a preamble, it ought to dispel fears of conferring special powers to enforce the distinctiveness or nationhood. Unfortunately, this is not the case currently with Legault's supposed unilateral amendment with Bill 96, which is purposely interpretive.

Having dialogue rather than imposition would have been preferable, in retrospect. Yet, similar to how he treated the aforementioned BQ opposition motion, Justin Trudeau responded to Couillard's overtures in the same fashion, by declaring he would not “open” the Constitution.

Canada's Ambassador to the United Nations and former Liberal Leader Bob Rae was critical of this dismissal at the time, where he stated:

“I disagree a little bit with what Mr. Trudeau said the other day, saying this topic is closed.

The Constitution is a living thing. It's a living document. It's not some dead piece of paper. The Constitution is about how we live together as Canadians. And that's a conversation none of us want to shut down.”

Rae went on to acknowledge that negotiation or dialogue is not the problem, but rather the process behind formal ratification of any proposed amendments.

This being said, what would it have cost Trudeau, even in terms of political capital, to have discussed this constitutional proposal with Couillard, long before it ever got to a First Ministers Conference or a national plebiscite? Couillard had even toured across the country meeting with each of the provincial Premiers, doing much of the legwork to ascertain the feasibility of his constitutional package, while getting a pulse for their own demands, if any had existed.

Unlike previous constitutional endeavours that were marked by Prime Ministers leading the charge, in this case the charge was being led by a federalist Premier of Quebec, in a political climate of relative stability from a national unity standpoint, thereby presenting a precious opportunity to strengthen the federalist cause against a future tide of sovereignty. Instead, this was foolishly dismissed outright by Trudeau without so much as a conversation.

Some may suggest that Trudeau's dismissal was the prudent thing to do, especially in consideration of the near death experience the country lived through during the 1995 Quebec Referendum, following on the heels of the failed efforts of Meech Lake and Charlottetown Accords to get Quebec to sign, where it was felt in both instances that Quebec's constitutional demands were rejected by the rest of Canada. Furthermore, “reopening” the Constitution will likely invite other provinces to add to their own set of demands, making agreement an even more arduous task.

One can also argue, by Couillard having re-engaged in the matter and being summarily ignored by Trudeau, this could have reignited the dormant feeling of rejection in the province, which may help to explain in part why Legault has completely bypassed Trudeau in his attempts to achieve his nationalistic goals, brazenly thinking he can amend the Canadian Constitution unilaterally, as if to pretend all the previous constitutional wrangling was entirely unnecessary and everyone else got it wrong.

It is in this light, where it can be imagined that if Trudeau had shared a similar mindset to that of Couillard's, insofar as exploring and possibly achieving something of significance in our country's history, much of what we are now seeing out of Legault's Quebec and the resurrected Bloc Quebecois in the House could have been squashed before it happened. Sadly, the ship of opportunity has long sailed, and who knows if our country has truly reached a point of no return in its constitutional journey.