Behind the Constitutional Curtain
A former B.C. cabinet minister recalls how a few savvy Provinces put a check on Pierre Elliott Trudeau in London in 1980-1981
By Brian Smith
Originally published in the print edition of The Dorchester Review Spring-Summer 2022, Vol. 12, No. 1, pp. 88-92.
THIS IS AN ACCOUNT of constitutional espionage by Quebec, British Columbia, and Alberta in the early 1980s to block the Pierre Trudeau government’s attempt to patriate the Canadian constitution with an entrenched charter of rights affecting provincial rights despite the opposition of eight provinces.
This initiative developed after the surprise election of Feb. 1980 returned Trudeau to office, after the Liberals had spent only nine months in opposition, and despite Trudeau’s having gone into retirement. He was soon embroiled in a Quebec referendum to separate, which failed decisively on May 21, 1980.
Restored to power, which he had held continuously from 1968 to 1979, Trudeau was determined to finish the country’s constitutional business. During a June summit with the provinces, Trudeau unveiled what he embroidered with the term “people’s package” — patriation, an amending formula, and a charter of rights and freedoms. Encouraged by favourable early polling on these issues, the federal government pressed on aggressively. Another First Ministers conference opened on Sep. 1, 1980 in Ottawa. It got off to a bad start with the leak of the Kirby memorandum, a strategic blueprint to manipulate the provinces with a backup plan of unilateral patriation. Michael Kirby was the Cabinet Secretary for Federal-Provincial negotiations.
Less than a month after the conference failed to reach consensus, Trudeau tabled his constitutional resolution which, once passed by Canada’s Parliament, would be sent to Westminster to enact a patriated constitution.
The centrepiece of the resolution was a charter of rights which would “entrench” fundamental freedoms for Canadians: mobility, language, and non-discrimination rights were included in the charter. No amending formula was mandated in the resolution but there was a requirement for either provincial unanimity or a referendum.
This measure proceeded through Parliament in the autumn of 1980 but in the end only Ontario and New Brunswick came to support the measure, as did the federal NDP. The action now moved to London and awaited the reaction of the Thatcher Government and the U.K. Parliament.
As early as Jun. 1980 Trudeau had visited Thatcher in London and received a promise of speedy passage based on what he told her. That commitment came when there was no discussion of a charter of rights and little about provincial opposition to the package. It was assumed by federal strategists that Westminster would speedily approve the measures passed by Canada at the federal level. This strategy underestimated the curiosity and independence of the British MPs, who were quite different from Canada’s Liberal backbenchers, and considered themselves somebodies rather than nobodies.
In Oct. 1980, Quebec sent Gilles Loiselle, an experienced media official to London as Agent-General for Quebec. His mission was to derail the Trudeau measures. He started entertaining British parliamentarians at his Kensington residence. Loiselle approached a Labour MP, Kevin McNamara, whose parents had lived in Quebec. McNamara was a member of the House of Commons Foreign Affairs Committee, which was looking for a project to study. McNamara persuaded his committee members to review the role of the British Parliament in considering a request by the Canadian government in a federal state when faced with strong provincial opposition. The Committee then hired John Finnis, an Australian scholar at Oxford with expertise on constitutional clashes in federal states.
The chair of this Committee, Sir Anthony Kershaw, had served in a previous Tory government as a junior minister in the Foreign and Commonwealth office. He was a former cavalry officer.
In preparing its initial report, the Committee heard from some leading British constitutional experts. The Committee also received briefs from five provincial governments, of which the B.C. brief was the most elaborate.
The Kershaw report was delivered on Jan. 30, 1981. In the words of the Canadian External Affairs Minister, Mark MacGuigan, written many years later, the report was “an unmitigated disaster” for Trudeau and his government. The report concluded that the British Parliament, in dealing with a request from the federal government to alter provincial powers, had a duty to ensure that the measure had the clearly expressed wishes of the country as a whole, bearing in mind its federal character.
Secret Mission
On the evening of Jan. 29, two ministers from Western Canada arrived on a secret mission similar to Quebec’s, to persuade British parliamentarians to reject the Trudeau measures. I was the Minister of Education for B.C. and was accompanied by Alberta’s Minister of Advanced Education, Jim Horsman. Our Premiers sent us with a mission. The final objective was to reform the people’s package to modify the charter rights and to devise a fair amending formula.
Horsman and I were given cover: the ostensible purpose of our trip was to do educational business. We were deputized by Canada’s education ministers to persuade the British government to exempt Canadian students from foreign fee surtaxes. I was chosen for the trip because I had recently visited London in Sep. 1980 on an educational visit arranged by the British Council. At that time, I enjoyed a fair amount of engagement with my British counterparts, Mark Carlyle, Secretary of State for Education, and Rhodes Boyson, Under Secretary of State for Higher Education. We shared similar conservative inclinations and their friendships would later prove useful.
Carlyle and Boyson had been made aware of the real purpose of our mission. They said that their House Leader, Francis Pym, had ordered that there should be no unilateral meetings between provincial ministers and British ministers, save in the presence of a Canadian federal representative, usually the High Commissioner.
Pym was regarded as a leading Tory “wet.” Our British ministerial allies were prepared to circumvent his proscription, and arranged for private meetings with trusted ministerial colleagues followed later by a meeting under the guise of our official education business, with the High Commissioner in attendance. It worked out well.
Both Alberta and B.C. had business offices in London. Alberta’s Agent-General, Jim McKibbon, was an experienced political operative. So was Dick Lilicoe at British Columbia House, who had worked for Saskatchewan Premier Ross Thatcher. B.C.’s Agent-General, Alex Hart, had just arrived in London from a legal career at CN Rail.
We worked closely with the Quebec Agent-General. British parliamentarians were not shy in accepting invitations to enjoy the fine cuisine and wine cellar at Quebec House. They preferred to go after dark, lest they be found dining with the representative of a “separatist” government. We then recruited certain guests to that dinner table in order to advance our cause.
The Kershaw Report alarmed the Trudeau Government and soon, realizing that they had been pipped by the provinces, Ottawa began sending pro-patriation operatives to put on the charm in London. Reeves Haggan from the federal-provincial relations office did restaurant tours to woo British politicians, just as the Quebec Agent-General had been doing successfully.
Fred Gibson, a senior legal advisor to the federal government and later Canada’s spy chief, was sent to London to smooth the waters for patriation. Haggan and Gibson tried to keep tabs on what we were doing in London and whom we were seeing. We sometimes wondered if we were followed at times, during our travels around Westminster, by Canadian government shadows.
Horsman and I set about arranging meetings with British parliamentarians. We managed to speak personally with some 125 MPs and members of the House of Lords. Among those that supported our opposition to unilateral patriation was Edward du Cann, chairman of the 1922 Committee of Tory MPs, who invited us to meet with some of his members.
Members of the House of Lords were also targeted, as some, such as Kimberley and Grey had connections to Canada. We were also helped by some prominent Canadian speakers who came to London to oppose the Trudeau measures. We attended the speech of Roy Megarry, publisher of the Globe and Mail, on Feb. 5, 1981 delivered to a London business audience. The Premier of Manitoba, Sterling Lyon, spoke in London against the dangers of entrenching a bill of rights in the Constitution.
Underlying Mistrust
Another factor influencing British parliamentarians was their underlying mistrust of Trudeau. He was seen as a French Canadian (in fact he was half-Scots Canadian) who had no war service, whereas many of the British parliamentarians who were his age had done military service and bore scars from their sacrifice. The British politicians were uneasy about written rights charters, preferring the unwritten Constitution of England which they believed had served both countries well. Finally, they expressed concerns about the strong provincial opposition to the measure.
At the conclusion of our business, Horsman and I were invited to dine in the Members’ Dining Room at Westminster with the Chief Government Whip. Our host was a country Tory politician, who wore a regimental tie and had shrapnel scars from past war service. Over port, he asked us what our Prime Minister had done during the “late war.” I was a bit shocked when Horsman replied that Trudeau had spent some time in Montreal riding around on a motorcycle wearing a leather jacket with a swastika emblem!
Our host paused while swallowing slowly, offering more port before exclaiming:
We promptly reported this news to the Premier of Alberta and the Premier of British Columbia back home, and made plans for follow-up conversations with British parliamentarians by our Agents’-General staff in London.
Much work needed to be done in London after February. Saskatchewan got involved in March, effectively lobbying British Labour MPs, many of whom disliked the Trudeau modus operandi just as Kevin McNamara did. Labour leader Michael Foot disagreed, though, and supported Trudeau. Some coordination of the efforts of the Agents-General from the dissenting provinces was attempted. Until the anticipated decision of the Supreme Court of Canada on Sep. 28 there was still a chance that the UK Parliament would pass the measure. Canadian federal politicians continued to underestimate the independence of the British parliamentarians on a constitutional issue that did not directly affect their constituencies.
In Canada, the political pressure increased on the Trudeau government to modify the proposals. The battlefield now moved to the Canadian courts which were by then considering provincial constitutional challenges to the Trudeau measures. Eventually the matter was pronounced upon by the Supreme Court.
On Sep. 28 the Supreme Court handed down its judgment, ruling that while it was strictly legal to proceed without the consent of the provinces, it was a constitutional convention that the federal government would need a “substantial measure of provincial consent” before requesting amendments that affected the powers of the provinces.
In October the Trudeau government learned from Mrs. Thatcher and her Foreign Secretary, Lord Carrington, that the patriation package would have trouble passing in the UK Parliament. Trudeau had hit a roadblock and decided to go back to the provinces to explore areas of compromise. The need for further discussion led to the historic meetings in Ottawa from Nov. 2 to 4, 1981.
Leading up the meetings the premiers met on Oct. 18 in Montreal and in Toronto on Oct. 27. Behind the scenes, meetings with officials of the federal government, British Columbia, Saskatchewan, and Ontario were taking place looking for some areas of compromise. B.C. helped shape the so-called non-author draft proposals by adding a notwithstanding clause to modify some of the charter rights. This device, I believe, was the brainchild of Paul Weiler, former chair of B.C. Labour Relations Board and Jim Matkin, B.C.’s Deputy Minister of Intergovernmental Relations.
Charter Override
B.C. officials had been actively working with their counterparts from Alberta, Saskatchewan, and Ontario. B.C.’s Minister of Intergovernment Affairs, Garde Gardom, promoted the “Charter override” as a way of breaking the deadlock between anti-charter provinces and the federal government. Ontario’s Attorney General, Roy McMurtry, became an early convert to the idea and he, in turn, recommended it to his Saskatchewan counterpart, Roy Romanow, and the federal Justice Minister, Jean Chrétien.
Premier William Bennett of British Columbia was the chair of the premiers’ conference in 1981. He wanted the constitutional impasse to be resolved.
Bennett invited me to attend the first ministers’ constitutional summit in Ottawa on Nov. 2. Prior to those meetings, I attended sessions in Toronto on Oct. 29 and 30 at the Harbour Castle Hotel. B.C., Saskatchewan and Ontario officials and ministers attended: Gardom from B.C., Romanow from Saskatchewan, and Tom Wells from Ontario.
My notes at the time reflect some progress towards a modified charter of rights and no Ontario veto (as had been proposed ten years earlier) on an amending formula. My job was to talk privately with my Tory friends who worked for Premier William Davis in Toronto: namely his principal secretary, Hugh Segal, and his party organizer, Norman Atkins.
On Nov. 2, in the Union Station conference centre in Ottawa, Trudeau sat down with the ten premiers to see if they could make a deal. The crucial issues were the Charter and the amending formula. The current proposed amending formula model was one we had inherited from the 1971 Victoria Conference proposing that Quebec and Ontario each be given a veto as the most populous provinces.
Opt Out
The charter issue required some modification or “opting out” provision that would protect the provinces’ legislative freedom. The notwithstanding clause would be the key to compromise.
I attended the meetings with the premiers for the first two days of the conference. Trudeau dominated the meetings. He played with the premiers. He goaded René Lévesque of Quebec in particular, threatening a national referendum, “because you are so good at referendums, René!” There could be little progress in those early days. All the while officials from the provinces opposed to the measure were meeting with Ontario and the federal government seeking compromise.
The conventional story is that the “three Amigos,” Jean Chrétien, Roy McMurtry and Roy Romanow, put together a compromise that would remove the veto on future amendments for Ontario and Quebec. It also included a charter with some rights (other than language and freedom of movement) subject to a provincial override. Chrétien presented the compromise proposals to Trudeau the next morning and, after some arguments, got him to agree. Hence the accord was agreed to by all provinces save Quebec, which then withdrew from the meetings. It now turns out that the personality that drove the compromise was really Ontario’s Premier Davis. He told me the story a few years ago and it was repeated by his then-principal secretary, Hugh Segal, shortly after Mr. Davis’s death last year.
On the last night of the conference, Premier Davis talked with Trudeau and told him that there had to be a compromise or he would withdraw his support for the patriation resolution, and that Trudeau would not have Ontario’s backing in London. He also had indicated earlier that he would give up the Ontario veto. He told the Prime Minister that a national referendum would be very divisive. According to Davis, Trudeau argued strenuously about the charter but finally agreed to the compromise.
Chrétien presented Trudeau with the 'kitchen accord' by the Three Amigos, but in fact, unbeknownst to them, the sale had already been made by Bill Davis.
Kitchen Accord
The next morning, when Chrétien presented Trudeau with the “kitchen accord” allegedly put together by the “Amigos,” unbeknownst to them, the sale had already been made by Davis.
I once asked Mr. Davis why he didn’t tell the story of his intervention. He said old friendships had restrained him and, “I let him think they did it all.” Now his story is finally being told and it really does not diminish the role that the Amigos played in presenting the draft accord and their months of collaboration during which they reached out to other players in the constitutional stakes.
The result was the 1982 Canada Act with a new amending formula and a Charter of Rights and Freedoms modified by the constitutional and legislative safeguard, Section 33, known as the Notwithstanding Clause. The new amending formula adopted was the Alberta draft. Amendments would require the agreement of seven provinces representing at least 50% of the Canadian population. This meant that neither Ontario nor Quebec alone would exercise extraordinary powers by means of a veto. Even if it remains flawed in other ways, the end-product enacted and approved by the Queen in 1982 was much better than the initial patriation package that Trudeau had tried to rush through the British Parliament, unilaterally, no matter how many provinces opposed his will.
Brian Smith served as as Attorney General of British Columbia from 1983 to 1988 and afterwards as chairman of CN Rail (1989-1994) and BC Hydro (1996 to 2001). He has degrees from Queen’s and UBC Law and was called to the bar in Vancouver in 1961. He was Mayor of Oak Bay and was then elected to the BC Legislature in 1979 where he served under Premier Bill Bennett as Minister of Education and Minister of Energy, Mines and Petroleum Resources.
Originally published in the print edition of The Dorchester Review Spring-Summer 2022, Vol. 12, No. 1, pp. 88-92.