In October 1992, Pierre Trudeau defended his constitutional legacy during a memorable speech at the Maison Egg Roll, a Chinese restaurant in a working-class district of Montreal. I stood beside him that evening, in the role of master of ceremonies on behalf of the review Cité Libre. I was MC at our monthly gatherings, over a two-year period, but in a non-partisan capacity.
Trudeau’s legacy is bittersweet
First, he piloted the Constitution of 1982, which involved repatriating constitutional powers from the British Parliament at Westminster to Canada, which seemed like the final stage of decolonization; and
Second, his government enacted a complicated amending formula, which amounted to freeze-drying Canadian political institutions, making significant changes hard or even impossible to negotiate.
In fact, the Charlottetown Accord, promoted in 1992 by then-Prime Minister Brian Mulroney, sought to introduce a new amending formula, that would have enabled Canadian political institutions to evolve in a more orderly fashion. Mr. Trudeau was dead against that, and so he emerged from retirement to demolish the Accord.
But there are aberrations in the 1982 Constitution. For example, according to Part V, section 38 of the Constitution, amendments concerning the proportionate representation in Parliament, powers, selection, and composition of the Senate, the Supreme Court and the addition of provinces or territories require “Resolutions of the Senate and House of Commons and of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.”.
Then again, unanimous consent of all provinces is required for amendments relating to the role of the (British) monarch as head of state in Canada, the use of either official language, French or English (subject to section 43), the amending formula itself, or the composition of the Supreme Court. In other words, it would be easier for the British parliament to abolish the monarchy, than for Canada’s federal parliament and thirteen provincial and territorial legislatures. And it would require unanimous agreement of fifteen legislatures to abolish the requirement of unanimous consent. I don’t know whether to say “Good luck with that” or “Good grief”!
The Quebec government has never consented to the 1982 amending formula. It has always seemed to me that this formula is like a Canadian version of the historic Polish Liberum veto.
From the mid 17th to late 18th centuries, the Polish-Lithuanian Commonwealth was a Republic of nobility. The legislature or Sejm, made up of nobles, was subject to a self-defeating instrument, the Liberum veto (I freely oppose), by which any member of the legislature could stand up and declare his opposition to the current session, and even block any legislation enacted since the beginning of that session.
According to Harvard political scientist Grzegorz Ekiert, “The principle of the liberum veto preserved the feudal features of Poland’s political system, weakened the role of the monarchy, led to anarchy in political life, and contributed to the economic and political decline of the Polish state. Such a situation made the country vulnerable to foreign invasions and ultimately led to its collapse.”
Canada is hardly in the same impasse as the Polish-Lithuanian Commonwealth of the 18th century!
But the principle of unanimous consent in the 1982 amending formula means any single federal, provincial or territorial legislature can block a proposed amendment of significant constitutional matters, which means potentially giving veto power, say, to the legislatures of Nunavut or the Yukon, representing about 38,000 people each, or just 1% of Canada’s current population of 36.7 million people.
And when 1% of the citizens can dictate to the other 99%, things have come to a pretty pass. Talk about Liberum veto!
Don’t get me wrong – I have no problem with Nunavut or the Yukon! I just love it there.
But I am wondering … Maybe the voice proclaiming I freely oppose – Liberum veto – is actually the voice of Pierre Trudeau’s ghost, continuing to defend a personalized, self-perpetuating and even freeze-dried constitutional legacy?