Memories of it have now disappeared into the constitutional miasma that shrouded Canadian political life for some thirty years from the 1960s to the 1990s, but the Charlottetown Accord – signed twenty-five years ago this week – bears remembering in our current moment.
The Charlottetown Accord was the phoenix that attempted to rise from the ashes of the Meech Lake constitutional process. There were broad consultations and lengthy negotiations between the first ministers and aboriginal leaders. The principles of Meech Lake were extended further – Quebec as a distinct society, a provincial role in Senate and Supreme Court appointments, and agreements on federal-provincial spending power, language rights, Parliamentary reform, and the like.
Perhaps most interesting today is that the Charlottetown Accord proposed to include in the constitution a “Canada Clause” that would outline the principles undergirding the constitution. It would speak of the nature of Canada and would have interpretative authority, meaning that the courts would have to interpret the rest of the constitution, including the Charter of Rights, in light of the Canada Clause. Here is what had been proposed:
The Constitution Act, 1867 is amended by adding hereto, immediately after section 1 thereof, the following section:
2. (1) The Constitution of Canada, including the Canadian Charter of Rights and Freedoms, shall be interpreted in a manner consistent with the following characteristics:
(a) Canada is a democracy committed to a parliamentary and federal system of government and to the rule of law;
(b) the Aboriginal peoples of Canada, being the first peoples to govern this land, have the right to promote their languages, cultures and traditions and to ensure the integrity of their societies, and their governments constitute one of the three orders of government in Canada;
(c) Quebec constitutes within Canada a distinct society, which includes a French-speaking majority, a unique culture and a civil law tradition;
(d) Canadians and their governments are committed to the vitality and development of official language minority communities throughout Canada;
(e) Canadians are committed to racial and ethnic equality in a society that includes citizens from many lands who have contributed, continue to contribute, to the building of a strong Canada that reflects its cultural and racial diversity;
(f) Canadians are committed to a respect for individual and collective human rights and freedoms of all people;
(g) Canadians are committed to the equality of female and male persons; and
(h) Canadians confirm the principal of the equality of the provinces at the same time as recognizing their diverse characteristics.
(2) The role of the legislature and government of Quebec to preserve and promote the distinct society of Quebec is affirmed.
(3) Nothing in this section derogates from the powers, rights or privileges of the Parliament
Even after the defeat of Charlottetown, government have embraced most of the above principles in policy, though not by constitutional amendment. A notable exception has been the disappearance of aboriginal self-government from the agenda, a development on which I have commented upon here.
It is striking that as recently as 25 years ago, not only was it possible to discuss Canadian values, but it was possible to do so in a way that could be entrenched in the constitution itself. Consider the contrast with the current environment.
Shortly after his election in 2015, Prime Minister Justin Trudeau granted an audience to the New York Times Magazine. In return, it lavished praise upon Trudeau and noted that “Canada is becoming a new kind of state, defined not by its European history but by the multiplicity of its identities from all over the world.”
“‘There is no core identity, no mainstream in Canada,’’ Trudeau said. That view would make it hard to draft a Canada Clause.
More recently, Conservative leadership candidate Kellie Leitch made defending Canadian values the centrepiece of her campaign, during which she proposed screening would-be immigrants and visitors to Canada for “Canadian values”. That was greeted with a firestorm of accusations – from friends and foes alike – that such talk indulged in xenophobia, religious discrimination or even flat out racism. Dr. Leitch subsequently defined those values as “hard work, generosity, freedom, tolerance and equality of opportunity.” Hard work and generosity did not make it into the Canada Clause.
Leitch did not fare well in the leadership results, suggesting that even as a matter of political tactics – and the Leitch values gambit was widely considered to be just that – Canadian values is not a winning issue.
Values talk in Canada has become politically delicate. The proposed Charter of Quebec Values was controversial both within and without Quebec for violating religious liberties and for being motivated by anti-Muslim animus. When talk of Canadian or national values is raised, there is more than a suspicion that what is really afoot is a desire to exclude or unjustly discriminate.
The current constitution of course enumerates values, both explicitly – the supremacy of God and the rule of law, a free and democratic society – and implicitly. It is quite impossible to have a constitution that doesn’t enumerate some values to be preserved and defended. In that sense, we could describe the entire constitution as a variant of the “Canada Clause”.
How to speak about values, especially the shared foundational values of our common life, is more fraught than it was in 1992. It might not even be possible today, to draft a Canada Clause that all the first ministers and the aboriginal leadership could sign-on to. Yet it is not possible to govern without the guidance of values, so our common life requires that we find a way to talk about what we must, though it seems difficult to do. It is a challenge perhaps more daunting than constitutional reform.
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