04/19/2012 11:12 EDT | Updated 06/19/2012 05:12 EDT

How Bill Davis Saved Canada


As we dwell on the significance of the Charter of Rights and Freedoms, it is important to remember the events that led to patriation. Although delving into hypotheticals is never an easy thing, let's give it a shot.

The context: In 1981, Pierre Trudeau wanted to end the decades-long attempt to bring the Canadian constitution home from Britain -- adding the Charter of Rights and Freedoms -- once and for all. Canada's Supreme Court, in its famous Patriation Reference, had stated that Trudeau legally had the right to go to London to seek patriation unilaterally. However, the court also clarified that a constitutional convention existed that required Trudeau to first obtain a "substantial degree of provincial consent".

In November, Trudeau brought the premiers to Ottawa for one last try to do just that. If he failed, he threatened to go to London nonetheless. And if Margaret Thatcher refused, he could go so far as to declare independence unilaterally, possibly with the help of a national referendum on the issue.

Trudeau's allies were Ontario's Bill Davis and New Brunswick's Richard Hatfield, both Progressive Conservatives. The other eight premiers coalesced into the infamous "Gang of Eight", which had proposed a different plan for Canada's constitution -- a supreme law without a charter or rights and with an "opt out" clause for federal programs with financial compensation to be provided to the provinces.

After three days of stalled negotiations, federal Liberal Justice Minister Jean Chrétien, Ontario PC Attorney-General Roy McMurtry and the latter's Saskatchewan NDP counterpart Roy Romanow devised what became known as the Kitchen Accord, in which the premiers would drop the "opt out clause" if a "notwithstanding clause" -- allowing for a legislative override of judicial decisions -- was included in the Charter.

Later that night, some of the premiers convened to find a deal that included the Kitchen Accord that they could sell to Ottawa. Trudeau, not present, was vehemently opposed to the addition of a notwithstanding clause, thinking that it would dilute the purity of the Charter and possibly render it meaningless. A deal was reached among those who were present -- including Bill Davis.

Accounts differ, but most hold that Davis called Trudeau that night to inform him that if he didn't accept the inclusion of the notwithstanding clause, then Hatfield and he would back the Gang of Eight and Trudeau would have no provincial support before heading to London. The rest is history -- Trudeau caved and nine premiers eventually signed on. The deal was announced the next day.

Of course, not everything was rosy. René Lévesque's sovereigntist government didn't sign on, leading to the myth that Quebec had been excluded from the constitutional fold. This is turn led to attempts by Brian Mulroney to get Quebec to sign the constitution through the Meech Lake and Charlottetown Accords, which resulted in an increase in support for separation in Quebec upon their demise and the holding of a referendum on sovereignty in 1995.

But what if Davis hadn't made that call and Trudeau had gone to London with little to no provincial support?

If patriation were achieved unilaterally, the country may have been brought to the brink of breakup. Arguably no province would support a constitution that bit massively into its power without being compensated in some form. Western provinces -- particularly after Trudeau's National Energy Program of 1980 -- might have opted to leave Confederation rather than be degraded to the status of quasi-colonies of Central Canada. Newfoundland, new to Confederation at the time, may have done the same.

If Thatcher had said no to unilateral patriation and Trudeau had decided to hold a plebiscite on the matter, he may have lost in Quebec. Lévesque would have relished the opportunity to avenge his defeat in the 1980 referendum on sovereignty-association, arguing during the ensuing referendum campaign that Ottawa was attempting to usurp powers from Quebec City, precisely the opposite of what Quebeckers wanted to see in the federal government's response to the 1980 referendum.

Had Lévesque won the plebiscite, national unity would have been shot -- perhaps permanently. It wouldn't have just been the myth that Quebeckers were shortchanged during the "Night of the Long Knives" that would linger -- it would have been the voice of the people of Quebec themselves, announcing their rejection of Canada's fundamental law. It wouldn't have just been a separatist government of Quebec opposing patriation -- which was to be expected in any case --, but the people.

Even had Lévesque not won, had the result been just remotely close, division among the Canadian people on the act of patriating the constitution may have damaged national unity irreparably.

Canada's history since patriation in 1982 has been far from perfect. Yet the fact that the constitution was brought home with substantial provincial consent has led to a federation that is far more united than it would have been under other circumstances. After all, without the constitution and its amending formula, there would be no Clarity Act.

Bill Davis -- Ontario's Progressive Conservative premier -- may well have saved Canada. The Charter of Rights and Freedoms is not merely a Liberal accomplishment -- it's a Canadian accomplishment. That's something that should make us all proud.