Interview with Jean Chretien

By Yves Faguy March 2012

As the Charter turns 30, the former PM reflects on how the country has changed, activist judges and one of the most memorable months from his tenure as Justice Minister.

National: It has been 30 years since we adopted the Charter and you have had a long career in politics. How do you think the country has changed in that time?
 
Jean Chretien: It is quite difficult to appreciate what the country would have been without the Charter. Of course it was a transfer of power from governments to citizens, and also to the courts. Many judgments were important in changing some elements of our society. Take the minority language rights, for example, written in the Charter. It has helped the francophone community outside of Quebec and the Anglophone community in Quebec tremendously and I am quite pleased with that. It went further than we expected. [Then Prime Minister Pierre] Trudeau, for example, was afraid of infringing on education, which is a provincial responsibility. He did not want to change the balance of powers between the provinces and the federal government; however, he did want to change the balance between the citizens and the governments. I insisted on the right of minorities because my mother’s family moved to Alberta in 1907 and had lost most of their language; there were no French schools in that part of Alberta and Saskatchewan. I persuaded him to put it there.
 
N: What surprises you the most about the Charter’s impact on Canadian society?
 
JC: The acceptance of it. It was quite popular at the time we [adopted it]. Of course the provincial government in Quebec tried to block us, pretending we were taking away powers from the provincial governments; however, the public always enjoyed the Charter of Rights and felt secure with it.  And still to this day, 90 per cent of the so-called separatists — I would say 80 per cent — would say they approve of the Canadian Charter of Rights and Freedoms, which gives me a lot of satisfaction.
 

"We had the approval of the people. But when you are caught in a debate like that, emotion rises above rationality."

N: You believe it is more accepted today than it was in 1982?
 
JC: There is some criticism about it. Some claim the judges went a bit too far with some decisions. There was a lot of controversy about the notwithstanding clause; however, I was for it because if Parliament feels that courts go too far they can use the notwithstanding clause. In 30 years it has never used it and that was an argument I made at that time to purists who did not want to have a notwithstanding clause. No one ever dared to use the notwithstanding clause at the federal level and very few times at the provincial — I believe Saskatchewan and Quebec have used it.
 
N: Trudeau opposed it?
 
JC:  Of course, yes. There was a lot of debate in the cabinet with Mr. Trudeau when we presented it. He resisted it; however, I said to him that if we do not put it in to forget it and that we would not have a Charter. And following that we found a way around the difficulties. I am quite proud of that because remember the political problems we had at that time. In fact, during the debate on the Constitution — the famous November period with [then attorney generals of Saska­tchewan and Ontario] Roy Romanow, Roy McMurtry and [then Ontario Premier] Bill Davis, it was a hot debate because of provincial rights. [Then Quebec Premier] Rene Levesque was quite a communicator. The nationalists argued that we should remain under the British Parliament to change our Constitution — that makes me laugh. Where was their pride to still want to be a colony of England? It was unbelievable. We had the approval of the people. But when you are caught in a debate like that, emotion rises above rationality.
 
N: But it was the kitchen cabinet that found a solution.
 
JC:  My proposition was the so-called Kitchen Accord. I worked with Romanow and McMurtry on that. The person who does not get enough credit is Bill Davis because when the logjam was broken, it was Bill Davis who said to Trudeau that if he did not accept my compromise, he would quit. Trudeau was not convinced of the Kitchen Accord. And when I went to 24 Sussex that night to convince him, I was not very successful, until the phone rang. It was Bill Davis who told him that he agreed with it. Trudeau came back to me and began to ask questions differently. After the meeting, around quarter to eleven, he said to me that if we could get the consent of the majority of seven provinces representing 50 per cent of the population — that was the new amending formula — then he would probably accept it. In the morning he did.
 
N:   Are you concerned that 30 years later people may view the notwithstanding clause differently? The idea was for it to be used sparingly, since invoking it, in theory, carries political peril. Could that change?
 
JC: It could, if society changes. If there was really an abuse in the interpretation of the Constitution, you go to the people and say, “we have to correct that situation.” But it has not been tested federally in 30 years. Do not ask me to tell you what will happen in the next 100 years — I will not be around anymore.
 
N:   Would you still argue for the notwithstanding clause today?
 
JC:  It would be the same situation. It was a philosophical debate. Because some would argue that in a society the elected people have to be supreme — not judges — and I subscribe to that. Look at what happened in the United States where the judges reign according to their so-called philosophy. That is not the tradition here. I was involved in the nomination of judges as the Minister of Justice, as part of the cabinet and as Prime Minister for 10 years and I have never checked their voting patterns. It was never a debate that occurred to me. I never intended to look at judges’ records. Personally, I have al­ways favoured the promotion of people who are already judges because some people can be brilliant lawyers, but terrible judges. I have seen some who were very ordinary lawyers and became excellent judges. I would ask how many times, while in Superior Court, he was challenged by the appeal. If he had a good record there, then he must have been pretty good. Performance is important.
 
N:   Do you see any threats to the values of the Charter? It is difficult to get an entire country to agree to
the values that are embodied in it?
 
JC:  For 30 years the values have been accepted by society, there is no debate about that. Of course, there are some people on the right who would say it went too far; however, very few. There are some who say it did not go far enough and there will always be a debate about that.
 
N:   Obviously, practical considerations went into the crafting of the Charter. However, if you were to re-write it today, what would you change?
 
JC:  I do not know. Do not ask me that. It is purely, absolutely hypothetical and could not be done any­­way, so I am not losing time on that. I am happy with what we have done. It is probably not perfect; however, nothing ever is. Perfection is the enemy of good. I believe it is a very good Charter and it was very good for Canada to have a Charter.
 
N:   Has it ever crossed your mind that judge activism has gone too far?
 

"Look at what happened in the United States where the judges reign according to their so-called philosophy. That is not the tradition here."

JC:  I have to earn my living and do not have to check all of the judgments in the Supreme Court of Canada. I am not a lawyer specializing in that type of thing. But there is very little criticism. Of course there are some judges who think they are above everything and the parliamentary system — it is somewhat irritating. The notwithstanding clause is there to protect that. Have there been too many activist decisions? None that have caused any major problems. For example, gay rights were advanced by the courts and I did not appeal that judgement [by the Ontario Court of Appeal]. It was in the last months before I left. I remember the question of gay rights came up at the time we were debating the Charter. However, at that time, it was unacceptable. In fact, there was no debate about it. Society has evolved in 30 years and I accepted that when I was Prime Minister.
 
N:   Today we talk a lot about privacy rights and how the labour markets have been affected by globalization. Is the Charter robust enough to handle these issues?
 
JC:  I do not know if it is robust enough. You can speculate about what should and should not be in it. The Charter is not easily amended. We must live by it. And I believe it gave a lot of rights to citizens.
 
N:   Looking back, how do you view your role in crafting the Charter?
 
JC:  It was very much Mr. Trudeau’s agenda, no doubt about it, and he deserved the credit that people gave him. He asked me to be his Minister of Justice and do the work in the cabinet and committees as well as the negotiations with the provinces. I probably worked harder than him to implement it; however, that is another issue. I was working for him and it was very high on his priority list. Success has many fathers and failure has no fathers. I give the credit to Mr. Trudeau that he deserves and I thank him for the opportunity to carry out the work that I did. 

Yves Faguy is the senior editor of National . This interview has been edited and condensed for publication.