If Liberals are the party of the charter, Tories are party of BNA Act

And in Quebec, respecting division of powers, not charter rights, is the constitutional issue

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by L. IAN MacDONALD
The Gazette, Monday, December 11, 2006

In opposing the procedural resolution on whether to re-open the debate on same-sex marriage last week, Stephane Dion said Stephen Harper would invoke the notwithstanding clause to override the Charter of Rights and insisted the Liberals were "the party of the charter."

This was nonsense. Harper had no intention of invoking the notwithstanding clause to override court decisions permitting same-sex marriage. He was simply keeping a campaign promise to allow a free vote on whether to reopen the issue, a vote he fully expected and probably hoped to lose, thereby keeping his word but closing the file.

Harper made it clear that even if he won the vote on re-opening the debate, he had no intention of invoking the notwithstanding clause, only of testing a bill permitting same-sex unions, but protecting traditional marriage, before the courts.

Actually, as Dion well knows, the notwithstanding clause is an integral part of the the charter. And as former Alberta premier Peter Lougheed and others who were present at the creation of the charter have pointed out, the notwithstanding clause was the deal-maker for seven of the eight dissenting provinces in accepting the charter. Deal or no deal, that was the question.

The eighth dissenting province was Quebec, which has never signed on to the 1982 Constitution Act, except for the failed Meech Lake Accord of 1987 and 1990.

There's a lot of constitutional revisionism out there, so much so that when the Liberal government of the day handed out free certificates signed by Pierre Trudeau, the charter ended at Article 32, and didn't include Article 33, the notwithstanding clause, which in a quarter century has never been invoked at the federal level, and risks falling into disuse.

English-speaking Quebecers find the notwithstanding clause particularly distasteful because it was used by the Bourassa government to overrule the 1988 Supreme Court ruling French as the priority language of signs in Quebec, but permitting other languages less prominently. Among other political consequences, while it was constitutionally legitimate, Bill 178 was a political dagger through the heart of the Meech Lake Accord.

While he's perceived in the rest of the country as a champion of federalism as the father of the Clarity Act, English-speaking Canada is generally unaware that Dion, as a poli-sci prof at Universite de Montreal, supported Meech and once called Trudeau's campaign against it "the worst constitutional error in the history of this country."

It's intellectually dishonest on Dion's part to imply the notwithstanding clause is somehow outside the charter, when it's an integral part of it, and when Trudeau's acceptance of it made the charter possible.

But leaving that aside, he has a point: The Liberals are the party of the charter. The Conservatives are the party of the British North America Act, and the division of powers between Ottawa and the provinces.

That's the fundamental bargain of Confederation. Ottawa's powers are in Section 91 of the constitution - the POGG, peace, order and good government, which Stephen Harper last week called "the founding principles of Confederation." The powers of the provinces are in Section 92, including health care, daycare and cities - jurisdictions the Martin Liberals invaded because their polls said Canadians regarded these issues as their top priorities.

Nor was asymmetrical federalism invented with the health-care accord of 2004, allowing Quebec to have independent reporting standards on waiting times in its own jurisdiction (what a revolutionary concept).

Dion knows all about asymmetrical federalism, since he successfully negotiated a constitutional amendment to Section 93 of the Constitution Act, allowing for Quebec school boards to be organized on linguistic rather confessional lines.

And this agreement was achieved between a hard-line federalist minister and a Parti Quebecois government.

But if Dion wants to frame the election in Quebec about competing visions of federalism, Stephen Harper will be more than happy to have that debate.

Any prime minister will defend the Charter. It goes with the job.

But Harper is also a BNA prime minister, in a Conservative tradition going back to Sir John A. Macdonald, and as such he has pledged to respect the constitutional division of powers.

If that's the ballot question in Quebec, at least off the island of Montreal, then give the advantage to Harper in a competition for federalist votes.

 
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