Trudeau was prevailed upon to "refer" the matter to the Supreme Court (reference cases are rare and only occur when as in this case, there is some doubt as to the constitutionality of the matter) . The Court ruled that nothing in the written constitution prevent unilateral action, though it would be against the unwritten/ constitutional conventions to do so. A meeting of provincial premiers was held in November 1981 to try and reconcile differences and here is where it gets interesting and two versions will emerge as to what took place and who did what.
The Quebec version was that Rene Levesque was isolated and that the agreement of Nov.5, 1981 was as a result of the nine province and the federal government ganging up against Quebec and from henceforth will be referred to as "the night of the long knives". The other version which is closer to the truth (and the notes that I have kept and which I have used for years ( at least 25 yrs.up to my retirement), teaching Canadian Politics, bear this out. Levesque made it very clear that he was attending the meeting only to protect Quebec's interest and that he was not interseted in the 'renewal' of Canada. He however had found some of the premiers were adamantly opposed to Trudeau's plan and he decided to work with them, the Gang of Eight ( Conservative Premiers Peckford and Lyon were opposed to the Charter of Rights, because of its emphasis on individual rights, NDP Premier Blakeney of Sasketchewan wanted stronger rights for women, Premier Lougheed of Alberta wanted protection for provincial resources etc), and agreed to the Vancouver formula as Quebec will be able to opt out of future constitutional amendments and be compensated financially. When Trudeau heard about this deal, he offered Levesque another deal. This one call for a referendum to settle constitutional issues, if after three years of discussions no deal was reached. Levesque accepted. The now " Vancouver Seven" felt betrayed and were keen for another deal. In any case Levesque left the conference and went to his hotel in Hull ( he liked the image of himself not hob-nobbing with the "Anglos" in Ontario), to play poker.
While he left the conference, thinking he had a deal which he could successfully sell to Quebec, a meeting was held over coffee, convened by Jean Chretien, Trudeau's Justice Minister. With Chretien was Roy Romanov, the Atty. General of Saketchewan and the Atty. General of Ontario Roy McMurtry and they came up with another deal, which would address the concerns of the Gang of Seven. This deal will allow for the patriation of the Constitution, with an amending formula and with an entrenched Charter of Rights and Freedoms, with a "notwithstanding clause" and would change the way in which Canadians would henceforth be governed.
Levesque was missing and thus the "deal' was made with him being absent. He gambled that he had achieved his objective of protecting Quebec but he was out-bluffed in the end and he left the conference a bitter man and blamed it all on the "night of the long knives"and was able to sell that version to his followers and that myth has grown as the years have gone by, especially amongst those who wanted to protect his reputation. He gambled on the future of Quebec, thought he had gotten the best of the others. Even Trudeau had to cave in to him, with his offer of a referendum and then it all went wrong. What if he had remained in Ottawa? What if he had been less conceited? No, his victory was too sweet and then it became a bile. He was furious. He had lost the 1980 referendum and now this.
Part 11...The Charter of Rights and Freedoms.
This Charter allowed, first of all, for the marriage of parliamentary supremacy with judicial review. Parliament would still be the supreme lawmaking body, but the Supreme Court can declare acts of Parliament to be unconstitutional (ultra vires). The constitution is not as rigid as the American's or as flexible as the British. It can be called a mixed constitution. It allows for the clarity, coherence and consistency of written laws, while at the same time makes it possible for it to grow and remain relevant through amendments.
Section 33 is the 'non obstante" (the notwithstanding) clause, by which parliament is allowed to make laws affecting Sections 2, Fundamental Freedoms; Section 7-14, Legal Rights and Section 15, Equality Rights of the Charter. Many have argued that these are some of the most important Rights and Freedoms in a democracy and make a democracy, democratic and that these Rights and Freedoms should not be subjected to the whims of elected politicians and they are right but the past thirty years has seen little use of this clause (about 5 times, mostly in Quebec). When people are aware of their Rights and Freedoms, it is very difficult to take away or limit them, especially when there is a Supreme Court to protect them. The years have seen thousands of uses of the Chater by individuals, especially the above-mentioned three. In Canada, at least so far, our courts have not been driven or appointed through ideplogy as is the case in the United States, which have led to cases being judgred on legal merits and not ideology.
The Charter is also tempered by Section 1, which allows parliament to make laws " subject to such reasonable limits .......that are deomnstarbly justified in a free and democratic society"; by Section 6, which protects Canadian citizens by allowing them "to enter, remain or leave Canada", also allow for the free movement within Canada without discrimination, but allows provinces with a higher unemployment rate than the national average to give preference to its residents; by Section7's "life , liberty and the security of person"( abortion laws stuck down for example and rights to fair and speedy trial, to be presumed innocent, to counsel, to jury trial , against self-incrimination, double jeopardy etc have expanded rights; Section 15, Equality Rights, embodying the "rule of law" expressly prohibiting discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability ( in the USA for example, the 14th amendment states simply that everyone is entitled to "equal protection" and 'due process of law", not as precise, which courts prefer; the protection of Minority Language Educational Rights in Sec.23; equality of sexes in Sec.28 (women have same rights as men re-emphasised; defeat of ERA denied this to American women); protection of Aboriginal Rights in sec.25 and 35 AND THERE ARE MORE.
The Constitution Act, 1982, in which the Charter is entrenched, is based on three principles; the equality of all Canadians; the equality of all cultures and cultural origins ( recognition of Canada as multi-cultural); and the equality of all provinces but it is the Charter which has had the greatest impact. It has become the model for other countries like South Africa and it has created a greater sense of pride and identity (together with our medicare system) amongst Canadians. We are all better for this, from the weakest to the strongest; from the poorest to the richest; from native born to recent immigrants.
The Battle of Vimy Ridge gave Canada a sense of nation; the Charter has given us a sense of national pride and a greater belief in our ability to be better. Nice, eh?