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Pierre Elliott Trudeau:

A giant legal footprint
With the Charter and the Constitution, the former
prime minister created a deft balancing act between
the rights of the individual and the protection
of minority cultures, says professor LORRAINE WEINRIB

Thursday, October 5, 2000

Pierre Trudeau once remarked that the politician is a teacher. His political career provided a 20-year national seminar on the nature of citizenship in the modern, liberal, multicultural and divided state. He had the rare opportunity to build his ideas into the legal framework of his country. His vision, informed by constitutional theory and shaped on the anvil of federal-provincial politics, transformed Canada into a modern constitutional state, complete with a Charter of Rights and Freedoms.

It has transformed the Canadian legal system and had a profound effect on the constitutional arrangements of other countries, as well.

The Quebec of Maurice Duplessis provided the perfect environment for nurturing an obsession for liberal democracy. Under the guidance of his mentor Frank Scott, Pierre Trudeau came to champion the values of individual freedom and equality, and to condemn the idea that we remain captives of our race, religion, class or collective history. He did not, however, denigrate cultural identity. He believed that the state should protect cultural values, but under the rubric of equality. It should not privilege the majority.

As minister of justice, Mr. Trudeau began to put these ideas into effect. He introduced legislation permitting therapeutic abortions, legalizing adult consensual homosexual acts, allowing the dissemination of birth-control materials and contraceptive information, and authorizing judicial divorce based on a range of fault and no-fault grounds.

These amendments have a common thread: They all have the effect of supporting liberty and equality by disengaging the state from the most intimate aspects of our lives. In other countries, courts effected such changes in response to challenges brought under bills of rights. Under Mr. Trudeau, progress resulted from law reform.

As prime minister, he carried his project of constitutional renewal to fruition, patriating the amending formula from the Parliament of the United Kingdom and adopting the Charter of Rights and Freedoms. As a result, the courts (particularly the Supreme Court), have borne the primary burden of overseeing the transition from a system based on legislative supremacy to a system based on a bill of rights.

Commentators routinely claim that Mr. Trudeau moved the Canadian legal system into the American model. It would be more accurate to say that he melded together the best elements of Canada's diverse legal tradition. The Charter codifies legal norms in the civilian tradition; it respects the British view of the constitution as a living instrument, sustaining fundamental principles through legislative self-restraint.

It does not regard the constitution as a revered text embodying truths crystallized at a particular historical moment, a common view in the United States.

But Pierre Trudeau the politician had to bridge the gap between those who supported his project and those who were opposed. At first, he agreed to a compromise provision that would have weakened the protection of rights by permitting courts to allow encroachments that were "generally acceptable" in a parliamentary system of government. Canadians said they preferred no Charter at all to one that would subordinate guarantees to popular will. And so Mr. Trudeau reluctantly accepted another compromise. This one created separate, but complementary, constitutional roles for both courts and legislatures. The Charter would allow courts to authorize only narrow and principled limitation on rights. To provide institutional balance, the opposing premiers insisted on a clause to permit legislatures to suppress selected rights and freedoms for the duration of an election mandate if they did so by express enactment.

Mr. Trudeau denounced this compromise, but one can argue that it fulfilled his aspirations for an organic constitutional system better than the deferential limitation clause that his government had earlier put forward. Protecting rights has always been the work of courts, and the rights-protecting systems that inspired this limitation formula provided a sophisticated, sequenced system of analysis that ensured that any judicial limitation would conform to constitutional principle; in other words, the limitations would not negate rights-protection.

The second part of the compromise, the notwithstanding clause, is not as outrageous as Mr. Trudeau believed. The conditions of express enactment and temporary duration have militated against its use, as its framers expected: To the extent that the public supports the Charter and respects the Supreme Court of Canada's judgments, there is a high political cost attached to invoking this clause. Premier Robert Bourassa used it to reinstate collective language rights -- and lost support for the Meech Lake Accord. Premier Lucien Bouchard has refused to use the clause, mindful no doubt that a blatant departure from the norms of the highly respected Canadian Charter, especially in regard to the treatment of minorities, might undermine international support for his aspiration to Quebec sovereignty.

In its early Charter judgments, the Supreme Court revealed the Charter's internal integrity on the model of postwar rights-protecting instruments. Mr. Trudeau prepared the court for this challenge, appointing Bora Laskin (like himself a professor of constitutional law) and later Brian Dickson, a strong advocate of individual rights, as chief justices.

The court broke new ground, and at the same time, was so successful in persuading citizens that it has accorded a proper degree of priority to their rights, that Canadians haven't tolerated legislative negation of its rulings. Critics of the Supreme Court, particularly on the right, claim that the Charter has illegitimately transferred legislative prerogatives to the courts. In fact, the opposite is true: The Charter indirectly disciplines government to take its constituents' rights seriously. In the best tradition of British constitutional law, courts protect liberty and legislatures exercise self-constraint.

Other countries have come to appreciate this logic. The new South African Constitution and Israeli rights-protecting systems emulate ours in their institutional framework. Canada's system of rights protection has become an integral part of legal practice in many countries, especially where the legal system builds on a foundation of British law.

Mr. Trudeau's amendments reoriented Canadian constitutionalism to the basic principles of liberal democracy, adapted to the multicultural, pluralistic, and often divided nation state. The principles offer a mode of reasoning, not easy answers. They supersede the tendency of legislatures to perpetuate the majority's culture, tradition and morality. The Supreme Court no longer engages in a dry parsing of the Constitution's text, as if the words contain the authoritative answer to current questions its authors couldn't have imagined.

There are strong indications that the Trudeau legal legacy will endure. After retirement, Mr. Trudeau emerged from private life twice to protect that legacy from changes that he believed would undermine the core principles of the modern constitutional state in Canada. His arguments proved persuasive.

The constitutional system that we now enjoy reflects Mr. Trudeau's idea of the relationship between the individual, the group, and the state. He offered us the opportunity to build our lives as free and equal individuals, in the communities we choose, in a state that must respect both our individuality and our identities. His impassioned commitment to an organic constitutionalism based on liberty, equality and human dignity is ingrained in our society.
Lorraine Weinrib is a law professor at the University of Toronto.

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