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The Charter at 40: An Historic Canadian Compromise

More than 40 years ago, the Prime Minister of Canada met Canada’s 10 premiers in the Government Conference Centre to negotiate a constitutional settlement about three goals that had eluded Canadian leaders since 1927.

PHOTO: Prime Minister Pierre Trudeau looks on as the Queen signs the new Constitution Act, including the Charter of Rights and Freedoms, on Parliament Hill on April 17, 1982. Forty years on, Trudeau’s former Principal Secretary Tom Axworthy tells how the deal was done. Robert Cooper via Library and Archives Canada.
Forty years on, one question remains about the dealmaking that led to the adoption of the Canadian Charter of Rights and Freedoms. Was the notwithstanding clause, the constitutional override of Parliament and the provinces, too high a price to pay for it? Tom Axworthy, who was in the room as Principal Secretary to Prime Minister Pierre Trudeau, shares his recollections of those momentous days, and his insights into that question.

More than 40 years ago, in the first week of November 1981, the Prime Minister of Canada met Canada’s 10 premiers in the Government Conference Centre — Ottawa’s landmark defunct railway station — to negotiate a constitutional settlement about three goals that had eluded Canadian leaders since 1927. These were: first, to end Canada’s formal legal status as a colony of Great Britain, second, to achieve an amending formula to change the constitution to meet evolving conditions, and third, to enhance the rights of Canadians.

Over four days — from Monday November 2 to Thursday November 5, 1981 — the leaders occasionally reached heights of eloquence as they defined their contending visions of Canada, sometimes stooping to invective and meanness more appropriate to street gang rumbles. Right to the end, most participants despaired of ever achieving agreement. But finally, and somewhat amazingly, during the evening of Wednesday November 4th and the morning of Thursday November 5th, the leaders cobbled together a series of compromises that allowed nine provinces (excluding Quebec) and the government of Canada to unite in sending to Great Britain a resolution that finally ended Canada’s quest for a new constitution. The patriated Constitution with the Charter of Rights and Freedoms was signed by the Queen on Parliament Hill on April 17, 1982.

Compromise is not the same as consensus, though it may lead to that result. When negotiators reach consensus, they agree that a particular course of action is the best choice to make. But compromise is support for an inferior position, according to your values or interests, but one you felt compelled or were persuaded to make after assessing risks and possibilities. On the constitutional settlement of 1981, for example, two of the main actors had very different views. Jean Chrétien, who was then justice minister, not only defends the constitutional deal but extols it: On the Charter’s 30th anniversary in 2012, in responding to criticism from Quebec nationalists, he said Quebecers favoured ending Canada’s status as a “legal colony” and “they use the Charter of Rights all the time in Quebec.” He added: “The courts have gone further than expected,” in expanding minority education rights– a boon for francophones outside Quebec and anglophones in Quebec.

In his opinion. the use of the notwithstanding clause by provincial governments had so far been restrained and it had the advantage of being a useful brake on potential judicial activism: “I’d rather have too many freedoms than not enough. But it is for the court to decide where there are limits because society evolves so rapidly. Yet, if the courts ‘go too far’ Parliament will not accept it.”

Quebec even signed on to the April 1981 Accord of the Gang of Eight, which promoted an Alberta- proposed amending formula of seven provinces and 50 percent of the population

Pierre Trudeau, however, held a different view: he ultimately accepted the compromises that Chrétien and Ontario Premier William Davis urged upon him, but he never wavered from his opinion that the federal amendment proposal that contained a Quebec veto on changes, with a provision to go to the people in a referendum if deadlocked, was superior to the Alberta proposal of seven provinces with 50 percent of the population. He regretted that the Charter of Rights was not fully entrenched because governments could still diminish rights through use of the notwithstanding clause; and had he gone to the country in a referendum to decide between the competing federal and provincial packages, Quebec would not have been left out of the final decision.Trudeau told journalist Ron Graham in a 1992 interview, later published in The Last Act : “I should have gone for an election or a referendum. Quebec wouldn’t have been able to say it was left out because everyone would have been left out and Canada would have gotten a better amending formula and a better Charter.” Trudeau assumed in this statement, of course. that he would have won such a contest, though he would have had to win in every region, including the West. He might well have done so — the Charter was overwhelmingly popular with voters in every region — but it was a risk he was not willing to take in 1981. He mused, however, about the constitutional “what might have beens” for the rest of his life.

Chrétien’s defence of the 1981 compromise — in effect federal acceptance of the Alberta amending formula in exchange for a Charter of Rights and Freedoms with a notwithstanding clause allowing parliamentary supremacy over judicial decisions in the areas of fundamental, legal and equality rights — certainly reflects the mainstream tradition in extolling the necessity of compromise.

Compromise depends on what is real and practicable, as Viscount John Morley, biographer of British Prime Minister William Gladstone, once observed. What was real and practicable in the 1981 negotiations was that Trudeau had begun negotiating a new constitution in 1968 with the provinces and in 1981 he was still at it. “The Constitution was Trudeau’s Magnificent Obsession,” wrote Christina McCall and Stephen Clarkson in their 1990 book Trudeau and Our Times. By 1981 the end game was underway. There is no need to go over the ins and outs of the long constitutional battle, but three salient points set the framework for the last-ditch bargaining sessions of November 1981. The first was that despite the federalist victory in the 1980 Quebec referendum, the provinces reverted to their default position of opposing the federal goals of patriation and a charter of rights. After the failure of the September 1980 federal-provincial conference, Trudeau announced that Ottawa would unilaterally go to Great Britain and ask the British Parliament to amend the Canadian constitution one last time — with or without provincial support. The battle lines quickly formed: Ontario and New Brunswick supported the federal package and the so-called Gang of Eight provinces were opposed and resolved to fight the Trudeau initiatives in the courts and in lobbying the British Parliament to say no. Rene Lévesque and Peter Lougheed were the die-hard leaders of the Gang of Eight. Both believed if the Gang of Eight stayed united in opposition they would succeed in persuading the British Parliament not to approve Trudeau’s plan. In April 1981, to maintain the unity of the provinces opposed to the federal initiative, Quebec even signed on to the April 1981 Accord of the Gang of Eight, which promoted an Alberta- proposed amending formula of seven provinces and 50 percent of the population: dropping in the process Quebec’s traditional demand for a veto over constitutional change.

The second key point was that success in Great Britain for the federal package was not assured. Margaret Thatcher gave her word to Trudeau that she would support his initiative, but her parliamentary majority was a narrow one of only 44 seats and many of her Conservative MPs were not sympathetic to a package that had little provincial support and contained the innovation of a written entrenched Charter of Rights. There was a large Eurosceptic faction in the Conservative caucus, and they opposed the European Court of Justice promoting the primacy of European Union law over Parliament’s traditional authority. The debate in Canada over the Charter had many similarities with fears about written constitutions — of which Britain remains without — that so energized Conservative MPs in the UK. What would eventually be presented to the British Parliament and what obstacles that package might face was a constant factor in the minds of all the negotiators in November 1981.

Third, the Supreme Court of Canada ruled in September 1981 that the federal package was legal in that Ottawa could take to Great Britain a request that the British Parliament amend the Canadian Constitution without the consent of the provinces. But by a 6-3 majority, the court also ruled as a matter of constitutional convention a substantial degree of provincial consent was required (without defining what substantial meant). To maintain popular support for the federal package, Trudeau would have to try once again to negotiate with the provinces, which meant in turn that the unity of the Gang of Eight would have to be shattered. Some argued that given the Court’s ruling on legality, the Trudeau government should still attempt to go to London unilaterally. But I met the PM at Harrington Lake soon after the court’s ruling, and he understood the necessity of trying one more time to get the provinces aboard. We also discussed that if no agreement was achieved in November (the most likely outcome we thought) Canadians would be asked in a referendum if they supported the Charter of Rights and the federal amending formula. One way or the other, we had to show the British Parliament that the federal package enjoyed substantial support.

The basic compromise of November 1981 was that the federal government accepted the Alberta amending formula in exchange for provincial acceptance of a Charter of Rights. And the tactic that broke up the Gang of Eight so that this swap could be consummated, was Trudeau’s initiative on Wednesday morning November 4th to suggest that a referendum might be the way to break the deadlock, a fallback position he had been contemplating since at least September 1981.

Pierre Trudeau believed that the source of legitimacy for any constitution was the people rather than a compact among the provinces. In June 1980, for example, he presented to the House of Commons a preamble to the Constitution (eventually dropped in the ensuing federal-provincial negotiations) that stated, “We the people of Canada, proudly proclaim that we are and always shall be, with the help of God, a free and self-governing people… we have chosen to live together in one sovereign country, a true federation, conceived as a constitutional monarchy and founded on democratic principles.” Therefore, it is not surprising that he included in the federal amending formula a referendum provision as a deadlock-breaking mechanism. He also briefed his allies William  Davis of Ontario and Richard Hatfield of New Brunswick that at some point in the proceedings he might suggest a national referendum with the requirement that the Charter of Rights and the federal amending formula (with the permanent referendum provision) be approved by a majority of voters in each of the regions of Atlantic Canada, Quebec, Ontario and the West.

On the morning of Wednesday November 4th with the conference stalemated and near breaking up, Trudeau sprang his referendum idea and Premier Lévesque immediately agreed, perhaps believing that he would beat Trudeau in a second referendum and avenge the Parti Québécois’ defeat on sovereignty association in May 1980. Trudeau immediately went to the media announcing a Quebec-Canada alliance to democratically break the impasse and then added mischievously, “And the cat is among the pigeons.”

The cat was among the pigeons in two backyards, both in the Gang of Eight and the provincial allies of Pierre Trudeau.

The English-speaking premiers in the Gang of Eight were surprised at Lévesque rising to Trudeau’s challenge. The initial response was bravado, with Peter Lougheed saying, “We’ll fight them, and we’ll win,” but many premiers were not so sure that they could win a referendum opposing a Charter of Rights. This was due in part to one of the wisest decisions made by the Trudeau government in the entire constitutional saga. Cabinet had approved a draft Charter of Rights and Freedoms, but the government decided to open up the process by creating a Special Joint Committee on the Constitution and inviting MPs and the wider public to improve the Charter. The public response was tremendous: the Committee met for 56 days, held 267 hours of hearings and received more than 1,200 representations from individuals and groups, and it soon became clear that Canadians wanted a Charter of Rights. But as Robert Shepard and Michael Valpy wrote in The National Deal “they wanted a much better one than was being offered.” MPs from all parties put forward 123 amendments to strengthen and improve the Charter, of which more than half were accepted by the government. Just as important, the Committee hearings were televised, so for 56 days Canadians saw an intense debate about rights, perhaps the greatest public education exercise that has ever engaged Canadians. Aboriginal rights, protection for the disabled and strengthened guarantees for gender equality all emerged from this mass participation exercise in strengthening the Charter. A Bill of Rights may have been supported in the abstract by the public before the hearings of the special committee but by the end of the process the Charter had truly become a Peoples’ Charter. The premiers found this out when they took out Section 35 on aboriginal rights and applied the notwithstanding clause to Section 28 on equality of persons in the final negotiations on November 4th and 5th.   An enraged public soon forced them to retreat and both provisions were restored.

The basic compromise of November 1981 was that the federal government accepted the Alberta amending formula in exchange for provincial acceptance of a Charter of Rights.

So, the premiers were right to fear being on the wrong side of the debate in a national referendum on the Charter, as appeared likely after the Trudeau-Lévesque referendum entente emerged at noon on November 4th. A scramble began Wednesday afternoon to find a compromise that would meet some federal objectives while persuading Trudeau to meet provincial demands halfway. Saskatchewan took the lead in trying to craft this compromise. Saskatchewan had a critical supporter in this effort – Ontario. Premier Davis reluctantly supported the referendum provisions in the federal amending formula but neither he nor New Brunswick’s Richard Hatfield wanted a winner-take-all national referendum on the Constitution. Davis thought a negotiated settlement was the best course and his delegation worked closely with Saskatchewan officials and ministers to bring this about. As described by Hugh Segal, one of the premier’s closest advisors, Davis’ view of the constitutional debate was “that there is considerable merit to both sides of a question, and that the Canadian challenge is finding the instrument that builds consensus around those points of merit.”

In the end the Alberta amending formula, which treated the provinces equally by dropping the federal provision of vetoes for Quebec and Ontario and killed forever the concept of national referendums being an entrenched part of the Constitution, was reluctantly accepted by the federal government. This was the major Gang of Eight demand (excluding Quebec which simply wanted the whole federal project derailed.) Since 1982’s proclamation of the new Constitution, there have been 11 amendments, most of them affecting only a single province: there has been little national controversy over such amendments until recently when Quebec in May 2021 introduced  Bill 96 (with the notwithstanding clause) to further French language primacy and seeking to amend the Constitution under section 45, (requiring only the approval of the legislature concerned or unilaterally) to affirm Quebec as a nation with French its official language. Many argue that such an amendment would affect Canada as a whole and should be considered under Section 38 or the general amending formula of seven provinces making up 50 percent of the population.

Two significant proposed national amendments have failed since 1982: the Meech Lake Accord failed to be approved by enough provinces in 1990 under the 7/50 provision within the three-year deadline of section 39 when the Manitoba and Newfoundland legislatures ran out of time to ratify; and the leaders who negotiated the Charlottetown proposals of 1992 decided to submit the package to voters in a national referendum though they were not legally bound to do so. The proposed amendment package was defeated when 54.3 percent of voters said No and only 45.7 percent said Yes.

In the immediate aftermath of the November 2-5 negotiations Ottawa offered fiscal compensation to Quebec if education or cultural amendments passed that the province opposed to try and lessen the sting of Quebec losing its traditional veto. And Prime Minister Chrétien later passed a bill requiring that Ottawa first obtain the consent of Quebec, Ontario and two provinces from both the Western and Atlantic regions representing 50 percent of the population of those two regions before proposing a constitutional amendment to Parliament. Though not entrenched in the constitution, de facto, Quebec still has a veto.

Referendums are a democratic way to settle constitutional disputes when governments cannot agree: the Mulroney government, for example, organized a national referendum on its Charlottetown proposals in 1992 and British Columbia and Alberta have passed laws requiring that any constitutional amendment first be submitted to a referendum before their legislatures can consider ratification. So, governments are free to turn to referendums if the situation demands it and in our populist age, we may see this device used more frequently. Still by agreeing to drop his idea of formally entrenching a referendum provision into the constitution in order to get provincial agreement on the larger constitutional package, especially the Charter, Trudeau met John Stuart Mill’s criteria for worthwhile compromise of keeping your eye on the essential prize.

If accepting the provincially inspired amending formula was the major Gang of Eight demand, entrenching minority education and language rights was equally crucial to the federal government. Trudeau’s vision of Canada was one where francophone and anglophone Canadians could live anywhere in the country and receive public services and educate their children in their own language. Provinces were reluctant to entrench minority language education where numbers warrant: when Saskatchewan’s Roy Romanow, Ontario’s Roy McMurtry and Chrétien met in a kitchen in the Government Conference Centre on Wednesday  afternoon to write a list of seven points that might constitute a deal, the provincial list had minority education rights only after a referendum (Chrétien wrote on the paper “never”). In what became known as “the Kitchen Accord”, the provinces eventually recognized that Trudeau would never sign a deal that did not entrench minority language rights: it was his ultimate bottom line. On Thursday morning November 5, all of the English-speaking provinces agreed to entrench and later, after further negotiations with Quebec, the federal government put into the Constitution the Canada clause to protect the education rights of anglophones in Quebec. Making language and minority education provision an entrenched right is a major Canadian invention in the human rights field. Many countries grapple with how to protect language minorities from majoritarian democracy. The Canadian Charter of Rights and Freedoms shows them a way. For myself, as a Manitoban, I knew that the 1890 Manitoba Schools question had taken away minority rights from francophones and set Canada on a course of sectarian conflict. I felt especially proud that I was part of a government that had righted this historic wrong.

If the Alberta amending formula was the ultimate objective for the provinces and guaranteeing minority language and education rights were the same for the federal government, the last piece of the compromise puzzle was the acceptance by Trudeau of the notwithstanding or non obstante clause which allowed legislatures to overturn judicial decisions protecting fundamental, legal and equality rights.

The notwithstanding clause was a known entity, already part of provincial Bill of Rights in Alberta. Lougheed had raised the idea at previous federal-provincial conferences as a way to enshrine rights while maintaining legislative supremacy – a key objective for premiers such as Sterling Lyon of Manitoba and Allan Blakeney of Saskatchewan.

It was not, however, on Pierre Trudeau’s agenda until very late in the game: on Tuesday night November 3, 1981, Trudeau met his cabinet and said he might have to accept the Alberta amending formula in exchange for a fully entrenched Charter, but there was no hint that he might accept weakening the Charter itself. On Wednesday afternoon, November 4, after Trudeau had broken up the Gang of Eight with his referendum proposal, the notwithstanding clause was seen  by Chrétien as a possible way to get provincial buy-in for the idea of a Charter, Chrétien told  his colleagues Romanow and McMurtry, “You guys go and sell it to your premiers; I have a bigger job — I have to sell it to Trudeau.”  But sell it he did. On the evening of November  4th, as provincial  officials and premiers were meeting in Allan Blakeney’s suite in the Chateau Laurier (no one called Quebec officials), ministers and officials were meeting at 24 Sussex to listen to Chrétien explain that he had the makings of a deal — the Alberta amending formula in exchange for a Charter with minority language and education rights but with an override that would maintain legislative supremacy in key areas such as equality rights. Then, a little after 10 pm, Premier Davis called the Prime Minister and said he favoured the compromise Chrétien was advocating and if Trudeau turned it down, Ontario would not support a unilateral package going to London. Trudeau gave Chrétien a mandate to see how many provinces would come aboard. The next morning, Chrétien called the Prime Minister to say he had all of them except Quebec and the deal was done.

Since 1982, there have been 24 cases of provincial legislation that included the notwithstanding clause at the point of tabling in the legislature and of this number, 16 laws have been promulgated and come into effect. Supporters of the notwithstanding clause, including Lougheed, knew the significance of taking away the rights of citizens and he hoped that it would only be used on important matters after serious reflection. This standard has been slipping. When the Doug Ford government threatened to use the clause to ensure the reorganization of the Toronto City Council, the original supporters of the concept — Davis, Chrétien  Romanow and McMurtry — all criticized the Ontario government for using the clause on such a relatively minor matter. Quebec has been criticized, too, for using the clause in a proactive manner to exclude the courts from even ruling on legislation like Bills 21 and 96. These actions, however, are far from extraordinary: the provinces since 1982 have applied the notwithstanding clause 19 times pre-emptively, many more times than in response to a court ruling.

This is serious because you cannot have a political-judicial dialogue on rights, as proponents of the concept such as Harvard professor Paul Weiler advocated, if governments exclude the courts from even having the opportunity to consider whether the rights of citizens have been infringed. We are facing real dangers in the way current governments are using the power given to them in Section 33.

The constitutional compromise of 1981 came together so quickly in the afternoon and evening of November 4th that there was very little time for reflection when the PM and premiers met at 9:30 am November 5th to seal the deal. Trudeau did raise the use of a sunset clause after five years so that governments that wanted to continue to overturn rights through use of Section 33 would have to start the legislative process over again. “I can live with that” said Lougheed and, in the most famous use of the notwithstanding clause to restrict English on signs, Quebec, indeed, allowed its restrictions on signs to lapse after five years, though renewals of notwithstanding clauses in legislation are common.

I wish the prime minister had similarly pressed Lougheed and the other premiers on lifting the application of Section 33 to fundamental rights. In the debates over the Charter the premiers had mostly been concerned about the implementation of equality and legal rights. Had we pressed on fundamental rights Lougheed might have given in, though he later maintained it was a question of principle for him. As drafted in the Constitution, only a bare majority in a legislature is needed to pass legislation authorizing the use of the override. And the preemptive use of the override to prevent courts from even ruling on whether legislation is a violation of citizen rights is a real abuse of the original intent of the “framers” who advocated Section 33 as a last resort after a court had ruled.

The federal government has never yet used the notwithstanding clause (Quebec, Yukon, Saskatchewan, Alberta, Ontario and New Brunswick have invoked it). Prime Minister Paul Martin, indeed, once suggested that the national government should voluntarily remove its right to use Section 33. The current federal government may not want to go as far as Martin advocated by eliminating its power to use Section 33 entirely, but it should present a Clause 33 reform package both to prevent future potential abuses and to set standards that the provinces might one day adopt. Lougheed, one of the initiators of the notwithstanding clause compromise, thought hard about his creation and in a 1991 lecture suggested a reform package to prevent abuse while still maintaining his core principle of legislative supremacy.

Given the recent actions of some provinces, the Lougheed proposals are even more critical today than when he first raised them. The federal government should adopt the Lougheed plan and pass legislation outlining that if the federal parliament ever contemplated the use of section 33 it would:

➟ Clearly outline the rationale for using the override so that citizens could evaluate the tradeoffs.

➟ Pledge that the override would never be used in a preemptive way and would only be applied after a court ruling.

➟ Use of the override must be supported by 60 percent of the members of Parliament.

Edmund Burke said that successful compromises involved giving up some rights so that we may enjoy others and John Stuart Mill had similar advice in “sacrificing the non-essential to preserve the essential.” How do the compromises involved in the settlement of 1981 stand up today? The Alberta amending formula has been used 11 times, mostly for single province issues. The Charter broke new ground in entrenching minority education and language rights and these innovations have stoked interest from around the world. After the premiers disgracefully took out Aboriginal rights from the November settlement, public opinion forced the premiers to retreat, and the courts have skillfully and boldly used Section 35 on recognizing and affirming existing Aboriginal and treaty rights to begin the long road towards justice for our Indigenous peoples. Canada is no longer a legal colony of Great Britain. The Charter of Rights and Freedoms is used daily to enhance the rights of Canadians. The most contentious compromise was the acceptance of the notwithstanding clause and there are genuine grounds for worry if governments get into the habit of diminishing rights and preempting judicial review. But reforms can be made to make use of the clause a rare exception. It is up to Canadian citizens to begin to demand such reforms and if they do, the political system will respond.

Pierre Trudeau was at the height of his powers in 1981 and he might have been able to win a national referendum on the Charter. In 1981 according to public surveys 70-80 percent of Canadians favored an entrenched Charter of Rights: A survey conducted for the Canadian Human Rights Commission and released in June 1981, for example, found that 72 percent of Canadians favored an entrenched Charter with Atlantic Canadians the most favorable at 80 percent, Quebec and Ontario respondents at 76 percent and the West at 65 percent. As the debate went on, the Charter became even more popular: a poll released by the Canada West Foundation in October 1981, for example, just before the November showdown with the premiers, showed 80 percent of Westerners favored a bill of rights compared to 84 percent of all Canadians. The Charter, however, would have been only one part of the package that voters would have been asked to judge: in October 1981 a CROP survey asked how Canadians would vote in a constitutional referendum on the whole federal package and 50 percent of the sample would have voted yes, 33 percent were opposed and 18 percent were undecided, a solid potential victory indeed. But to succeed, according to the criteria discussed at the November 1981 negotiations, the federal plan would have to win in every region: in Atlantic Canada, Quebec and Ontario support for the federal initiative was 20 points or more higher than the no side but in the West 38 percent of voters would support Trudeau, 44 percent were opposed and 18 percent were undecided. As one of the people who would have had a role in managing the federal referendum campaign, I can tell you that it would not have been a slam dunk

Like Cyrano de Bergerac taking on 100 enemies, Pierre Trudeau might have been able to defeat Peckford, Lévesque, Blakeney, Lougheed and the rest of the premiers in a national referendum on the constitution. But the economy was in dreadful shape in 1981-82 and a referendum might have turned on regional or economic grievances rather than the Charter itself. The strategic imperative in elections is to frame the question uppermost in voters’ minds when they make their choice: if the hypothetical question had been “Do you favour a Charter of Rights?’ the constitutional referendum gamble would have succeeded. But if opponents had made a referendum instead turn on the question “Do you approve of Pierre Trudeau’s handling of the economy?” all bets would have been off. The advice of allies like Chrétien and  Davis, who both possessed great political intuition, was to take a pretty good — or at least a fair deal — rather than risk it all in a national vote. It was prudent advice and Trudeau took it.

The results since 1982 have ratified Trudeau’s choice of constitutional compromise over the risk of a winner take all referendum. He dropped what many regarded as the non-essential provision of the federal amending formula with its referendum clause to compromise with the provinces by accepting their amending formula. And, in truth, the Alberta inspired amending formula has functioned not too badly. In so doing, Trudeau won provincial acceptance of long-desired essential Federal government objectives like patriation itself, minority language and education rights, and above all an entrenched Charter.

Prior to the birth of the Charter, Canada was not known as a human rights leader — our Supreme Court was certainly more conservative than the Warren Supreme Court in the United States. But with the Charter, Canada broke new ground in linguistic and minority education rights and countries around the world became interested in the Canadian innovations. Canadian jurists and scholars are regularly invited abroad to speak to Canada’s Charter experience. At home, the adoption of the Charter has simply been transformative. The Charter of Rights and Freedoms was popular at its birth, it is even more popular now: An Environics study in April 2022 found that 88 percent of Canadians believed the Charter of Rights to be a good thing with only 4 percent opposed. As Andrew Parkin, executive director of Environics, wrote about the study “whatever our differences there is one part of the Constitution about which we almost unanimously agree…if anything in this country unites us it is support for the Charter”. The Charter has become an icon that defines us as a bilingual, multicultural society devoted to human rights, tolerance, and social justice. We are all Charter Canadians now and this transformation is perhaps the biggest single achievement of the hard-pressed negotiators of 1981.

Soon after the constitutional settlement, reflecting the mood of the times with Quebec left out, disputes over the notwithstanding clause and an unknown future for Indigenous rights, a review of the constitutional negotiations by several distinguished academics had the title, And No One Cheered. That may or may not have been true then. In 2022, on the 40th anniversary of the Charter and patriation, and at a time when rights are under attack globally, perhaps we should both applaud and cheer the negotiators of the historic compromises of 1981.

Contributing Writer Thomas S. Axworthy was Principal Secretary to Prime Minister Pierre Trudeau from 1981-84 during the debate and adoption of the Charter of Rights and Freedoms. He is now Public Policy Chair of Massey College, University of Toronto, at which he presented a paper on the notwithstanding clause on April 11, 2022 from which this article is adapted.


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