Feature

Notwithstanding

A playwright takes on the Charter

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• 5,288 words

It’s a myth that the central event of theatre is conflict. Anyone who has sat in an audience unmoved while two actors exhaust themselves by screaming at each other will recognize this. What does bring theatre to life is contradiction — the gap between speaking one way and behaving another or, by showing something, proving its opposite. The British dramatist David Hare describes this fruitful stress: “A man steps forward and informs the audience of his intention to lifelong fidelity to his wife, while his hand, even as he speaks, drifts at random to the body of another woman.” So in the absence of any practical knowledge or experience of the Canadian Charter of Rights and Freedoms, having decided to attend a conference on its twenty-fifth anniversary run by the McGill Institute for the Study of Canada, I revert to hunting for what I know as a playwright — the contradictions, the gaps and leaps, the drifting hand. I’m rewarded immediately and continuously. Canada survives thanks to a willingness to live with contradiction, and the conference reflects nothing so thoroughly as this truth.

In fact, the contradictions begin before I get to Montreal. The week before, the National Post prodded their regular opinionistas to offer some thoughts on the Charter’s impact on society. The thoughts of these men are, predictably, uniformly negative. David Frum moans that speech has been made less free by its inclusion in the Charter and that the document’s record to date has been a “shameful and ominous failure.” George Jonas complains that its arrival was a hundred years too late and that the notwithstanding clause neuters the entire project. Conrad Black dismisses the Charter as “banal and largely ineffectual,” and Andrew Coyne sighs that it’s not the significant document that everyone likes to think it is. With this, at least, I can sympathize. Having to read the lightly considered thoughts of the professionally sour is an experience I risk every time I open a play.

But then, the first surprise of the two-and-a-half-day event: as soon as I take my seat for the opening session, I learn that the National Post, utter in its dismissal of the Charter of Rights and Freedoms, is one of the sponsors of the conference celebrating it. I have barely enough time to consider the cynical reasons behind the Post’s sponsorship of the event (everyone around me is the sort of person the Post is desperate to have as a reader, a suspicion confirmed by the offer of a month’s free subscription that falls from the welcome package) before other contradictions begin to crowd out that initial, bracing one. The first instruction delegates to a conference on rights are given is one limiting their freedom. Specifically, we are told in the welcome package that wasting microphone time on personal diatribes will not be tolerated. Questions must be succinct and without agenda. Failure to follow this edict will result in the questioner getting cut off. “We are gathered here to embarrass no one,” we are told, primly, Canadianly.

The package contains a copy of the Charter itself. This is good because it’s possible that some of the people who show up for something like this might have never actually read the thing. It’s familiar looking, from school probably: creamy parchment, tiny font, a collection of little silhouettes of typical Canadians under the title. If this illustration is anything to go by, then the Charter of Rights and Freedoms, entrenched in the Constitution Act of 1982 by Pierre Trudeau as his legacy to the land he led on and off for sixteen years, seems to be meant for midgets, hockey players, the slightly obese, and lovers of bell-bottom pants. It is, of course, for all of us who are born into or gain citizenship — regardless of the diameter of our pant cuffs — thirty-four articles that promise the basics, including language, mobility, equality, and legal rights, plus other stuff, all free with purchase.

Who shows up for two and a half days of discussion about a document central to our national physiology? Pretty much who you’d expect: lawyers, academics, policy wonks, political scientists. Suits. And filling out the audience are law and poli-sci students — suits in training. The rest of the seats are taken up by constitutional hobbyists, journos, a few benign nuts, and, it must be said, several axe grinders who wait impatiently for the presentations to end so they can get to a microphone to test the limits of the no-rant rule.

The first major event is a conversation between three men who were involved in the negotiations surrounding the Constitution’s repatriation and one who manifestly was not. Louis Bernard, René Lévesque’s top bureaucrat in 1981, kicks things off by delivering himself of the opinion that Quebec’s absence from the Constitution’s ratification renders it and the Charter invalid. (Bernard managed, in fact, to use the words “abortion” and “political rape” in his subsequent comments.) And anyway, he argues, Quebec’s Charter of Human Rights and Freedoms is a superior instrument. He then sits back, sullen, while perennial political insiders Tom Axworthy, Hugh Segal, and Eddie Goldenberg reminisce about the heady days of 1981 and 1982.

During the endless negotiations between federal and provincial leaders on a patriated Constitution (there is apparent controversy about whether the Constitution was patriated or repatriated), the Charter was mostly ignored — worked out by a few exhausted men at the last minute. It was the process of public consultation that fleshed out the document. Trudeau, the man many acknowledged to be the only guy capable of getting this job done, desperately wanted to limit the public consultation process. And at the mention of Trudeau’s name, of course, the contradictions come thick and fast: the only prime minister to ever impose the War Measures Act during a domestic crisis, a man you’d have to describe as a reluctant democrat at best, was the champion of individual rights. He also had no interest in hearing what the people thought of the rights he wanted to provide them. Trudeau, the great romancer, is said to have been “terrible on women’s issues.”

There is palpable glee among Axworthy, Segal, and Goldenberg as they look back on the flawed and complicated process. Sitting among them, as undeniable as the failure at the heart of the Constitution’s birth, is Bernard, waiting patiently for the lovefest to end. He bolts from his chair when the session is over.

Then it’s cocktails. The grownups holding forth, slapping backs, rekindling decades-old arguments, the students grouped according to their discipline or shyly approaching their heroes.

The first session the following day will feature Joe Clark. I’m desperate to hear him admit that his contribution to the Charter’s creation was the spectacular failure of his minority government in 1979, the collapse of which coaxed Trudeau out of retirement. Before this, however, we have an address from Beverley McLachlin, the Chief Justice of Canada. Presumably emboldened because she’s speaking on videotape, she confesses a fetish for the Charter’s many qualifiers — its “reasonable limits,” its “subject to”s, its famous “notwithstanding.”

Clark does not fulfill my wish, but speaks eloquently about the Canadianness of the Charter, about its being the product of our beliefs, not their creator. He also attempts to keep the Charter’s influence in perspective: “Canada is more than rights,” he says. While this is self-evidently true, I bet his assertion won’t keep the next two days from being all Charter, all the time.

Others on the panel — civil libertarian Alan Borovoy, retired judge Barry Strayer, sociologist Lynn McDonald, and pollster Nikita Nanos — make little mention of Clark’s real contribution: as leader of the opposition, he forced protracted (and televised) consultation on the Charter, ensuring that not just suits had access to the framers. The consultation gained a momentum of its own, and the more average Canadians appeared before the parliamentary committee or watched the proceedings on television, the more citizens acquired a sense of ownership over the document. The result, according to Nanos, is that there is overwhelming support for the Charter twenty-five years after its creation, even if we are a little shaky on its actual content — nearly half of my compatriots are unaware of the notwithstanding clause’s utility or, indeed, its existence. Nanos also says that a significant number of Canadians are uncomfortable with the Charter. This, as far as I can see, is the strongest indicator so far that the damn thing’s doing something right. To sum up Nanos’s polling: we love it, it makes us anxious, we don’t really get it. These contradictions feel satisfyingly accurate.

Borovoy speaks cheerfully about the Charter’s shortcomings, civil liberties-wise. He says that its influence is so great that it can be used to circumvent moral judgment — most troubling in a post-9/11 world. Anti-terror legislation which contained the potential to curtail rights was said (by Irwin Cotler, Paul Martin’s justice minister) to be acceptable because it passed Charter muster, so that “legal expertise rather than ethical merit became the measure of whether we ought to adopt certain legislative initiatives.”

McDonald stumps for the Charter to be expanded to include environmental provisions. Discussion ensues about whether trees have inalienable rights.

The next panel is a little rougher going, at least for me. Asked to examine the current state of Canadian democracy, we very quickly get into some esoteric academic/lawyerly discourse. Martha Jackman from the University of Ottawa speaks of the “false dichotomy between democracy and rights.” By the time I figure out that she’s talking about the illusion that protecting minority rights means you aren’t being democratic, she’s a hundred yards into the rhetorical woods and she hasn’t left any bread crumbs for me. Rainer Knopff, a political scientist from the University of Calgary, riffs on the “tyranny of the majority/tyranny of the minority,” a concept that he asserts most people present will already be familiar with. I am, of course, not familiar with it, and I struggle to piece together what it means, more or less succeeding just as he refutes the idea as being unworkably crude. Jackman asserts that the Charter tells the state not to do things, not what to do, and everyone in the room nods. I’m left hoping she’ll expand on this, because it seems fascinating (perhaps just because it’s a simple assertion and I get it), but the conversation takes off in other directions.

Somebody says something about how easy it is to use the Charter for political ends. The favourite example is Paul Martin’s disingenuous (or possibly just irresponsible) assertion during the last election that he would bar Parliament from invoking the notwithstanding clause if returned to office. Someone suggests that a separate court that deals exclusively with constitutional issues be created. It’s agreed that the Charter has taken up too much of the public policy horizon over the last quarter century. Jean-François Gaudreault-DesBiens from the faculty of law at the Université de Montréal points out to us that democracy “isn’t only institutional” and that other ways for the public to express itself, not formed by legislative or judicial edict, have atrophied. Andrew Petter, British Columbia’s former attorney general, posits that the Charter has empowered lawyers and “disempowered political discourse and citizens who are not comfortable or conversant with legal discourse.” He also talks about how reverence for the Charter has given the government lawyers who vet legislation too much sway, and they tend toward caution or complication in the name of avoiding a Charter challenge. Petter, the lawyer, seems profoundly uncomfortable with how much work the Charter has provided for his colleagues.

For me, all of this is like watching a group of mechanics stand around a car engine talking about how to soup it up. Or, more accurately, like watching a group of theoretical mechanics stand around nothing and speculate about how someone’s idea of a “car” might get souped up under different (imaginary) circumstances. It’s people who think deeply (and have been freed from the confines of practical application) tossing ideas around. Of course, I do believe that for some, the chance to participate in this kind of free, low-stakes exchange is useful, perhaps even exciting. Sure enough, I look around and the students are blissed out on the conjectural shrooms being tossed from the stage.

Next up is a plenary on “Citizenship and the Charter.” Somehow, the teaching of the Charter is lumped into this topic, and Roderick Macdonald, from McGill’s Faculty of Law, offers thoughts on how it has become the elephant in the room of law study. The Charter exerts a gravitational pull that has resulted in a refocusing of pedagogy, and its sexiness also means that other areas of study want for students. Macdonald is the only speaker to use visual aids so far: slides of emoticons, which decorate the imaginary email exchange he’s having with constitutional expert F. R. Scott (whose chair he holds at McGill). I find myself inordinately grateful for the help.

Université Laval’s Guy Laforest steps up and asserts, in French, that Canada had an awesome twentieth century and that Quebec has been a “comfortable exile” inside the country due to this prosperity. Ideally, we should be able to say “the Charter is us,” he says, but Quebec can’t share this identity marker. This fact is undeniable and, Laforest implies, unconscionable.

Quite separate from Laforest’s ideas, it’s his delivery that’s entertaining. The simultaneous translators are having a terrible time keeping up with his rapid speech and elliptical thinking. If a speaker pauses, the translator will typically wait until the sentence is complete before giving us the entire thought. When Laforest pauses, it’s usually so that he can head off in another direction, leaving one translator in the dust. At one point, he zigs, then zags, then zigs again without taking a breath, and the translator actually moans in my ear.

Fo Niemi, from the Centre for Research-Action on Race Relations, says that new Canadians don’t see the Charter as something that attempts to resolve provincial-federal tension or defines a power division between Parliament and the judiciary. For immigrants, the document is a social contract and a promise that is tangible and potent. I assume it’s not just new Canadians who feel this way, but I take his point: what could be better than showing up in a country and being told that most of the things that make you different will be respected.

After the formal presentations, it’s questions from the audience. Laforest jumps in on most of these, to the translators’ chagrin. I take my headphones off and just sit back to admire the landscape of his discourse: rugged, formidable, extravagant. I convince myself that I can actually understand a word or two as he bulldozes a guy who’s been to the microphone several times already complaining that Quebec’s unilingual Anglos are getting screwed.

Lunch is called, and I’m spent. I head upstairs to my hotel room and order a sandwich. As I eat, I try to organize my notes. I start to think seriously about Roderick Macdonald’s assertion, raised in his talk and explicated in an article written for the February 2007 issue of Policy Options magazine, that thanks to the Charter “there has been a general tendency to legislative inflation (hyperlexis), and a proliferation of statutory instruments cast in broad, abstract formulas.” When I wake up, I realize I’m too late for the final official session of the day, “Judicial Review and Charter Practices.” I suppress my sorrow, put on my coat, and go for a walk.

This is a mistake, as it’s -20°C on Rue Sherbrooke, with snow flying horizontally that hits my few square inches of exposed flesh like tiny ninja throwing stars. I find a mall and walk around, now sweating. Thoughts on the Conference So Far While Trapped in Eaton Centre, Montreal:

1. You know you’re in the company of a very particular group when the phrase “entrenched in the entrenchment” is used and no one howls.

2. Graduate students they may be, but they’re still students. I’m surrounded by them during the panels, and as the intellectual temperature in the room has risen I’ve been enveloped by the smell of post-adolescent boys: nachos and wet newsprint.

3. The Charter begins with an article limiting powers that it hasn’t yet described. This makes the document, among many other things, adorable.

4. Banana Republic Montreal is exactly the same as Banana Republic Toronto, except more pink for men.

5. I’ve learned that since the amending formula was created, it’s become immeasurably harder to amend the Constitution.

6. At these conferences, it’s invariably the wrong people who choose to speak without notes.

7. There’s no question that the Charter is as large a pain in the ass as it is a societal help. It means we are constantly measuring our freedoms against those of our neighbours. As Michael Ignatieff said (well before he aspired to political office), “The trouble with equality is that no one actually wants to be treated just like everybody else.” There’s also no question that only a relatively peaceful, relatively flush country could ask its citizens to go to all this trouble.

8. Mall food courts in February smell the same all over the country: like nachos and wet newsprint.

I return in time for a special evening event: a public forum organized by McGill and cbc Radio on the issue of “reasonable accommodation.” It’s an interesting time to be talking rights in Quebec, of course, with the Hérouxville elders’ delightful proclamation (a set of helpful hints issued to would-be Muslim newcomers in the vein of “we celebrate Christmas” and “we don’t stone our women” — stuff like that), and the failure of the blinds on the windows in a Montreal ymca’s women’s exercise room (the neighbouring orthodox Jewish synagogue, which has boy students, asked that they be replaced with frosted glass, which some saw as anti-spandex). The media’s and Mario Dumont’s willingness to exploit the shit out of these events has brought things to a boil.

Emptied of the suits, the conference room fills up with people. Several hundred Montrealers show up on this filthy night, pink-faced and shedding layers. Soon the room smells like wet wool, an improvement. cbc’s Mike Finnerty is the host for this session, and there are several guests onstage with him: a constitutional lawyer, a journalist, a rabbi, and a rep from the Canadian Council on American-Islamic Relations (cair-can). Other invited guests take up the first row of seats. Finnerty asks the panel why the recent clashes over rights are on the front burner of Quebec society. Refreshingly, candidly, surprisingly, journalist Laura-Julie Perrault of La Presse suggests that the reason she’s written sixty articles over the past few years on the subject is that the controversy sells newspapers. Thus begins the best event of the conference.

There are reps from the provincial Liberals, the adq, and the pq, and they’re all given the chance to make a statement. None of them admits to making political hay out of the events; some actually blame the media entirely for any hysteria. Finnerty (and the entire room) realizes quickly that these people will be of little help, and they are rarely called on to speak again. The rabbi (Ronnie Fine from Chabad Queen Mary) makes a number of statements about generosity and sacrificing one’s self for others. Am I here to serve or to be served, he asks. He’s so, well, decent that he disarms the room, at least briefly. There’s a moment when we all feel sheepish for thinking only of ourselves and our rights, our entitlements.

Finnerty begins to call on questioners, who are fifteen deep at the microphone. There’s real anxiety being expressed, mostly two kinds: from one group, the suspicion that new Canadians are getting singled out for reasons that are fundamentally racist, and from the second, the sense that the world they used to understand is evaporating. It gets put a bunch of different ways, of course, but these are the primal fears. The Charter, I realize, can do nothing to solve such existential anxieties, but as I sit there, watching a community struggle to deal in very practical ways with the things discussed in abstract during the previous day and a half, I get what the Charter is good for. It’s a tool that’s built to prod the best out of the citizenry. First, it promises us the basics that provide security and dignity. Then, craftily, it reveals that sometimes the preservation of your dignity comes at the expense of my feeling secure and forces us to reconcile these needs. It provides formulas and instruments to do this, but insists that we do the hard work. It’s genius! By first giving people some profound gifts, it coaxes the whole society into active citizenship to defend them. All of us — pur laine, immigrant, lazy selfish pig, wilfully ignorant, plain dimwitted — all of us want to make sure that we get what’s coming to us, what we’ve been promised. We’re forced out of our ghettos and into the public square. To bitch, but still. Out we come. Out we come.

I try to figure out if this makes us unique, and the only conclusion I can draw is that if the tools are similar (there are, after all, many countries with bills of rights, including a huge and handy one just to the south), the deal made between our society and its imaginers is subtly different. Some places, it seems to me, offer rights in exchange for identity — these are the protections offered if you set aside some of who you are and become one of us. But here, we say no, please, keep your funky outfits and stay among your own people until you’re comfortable, and here are some gifts to help you settle in. Oh, but by the way, part of your present is in someone else’s box. No idea how that happened — go get it.

There’s a woman down my row, older, clutching a newspaper, head on a swivel. She clucks and hisses when anyone suggests a bit of unreciprocal generosity toward a particular group. She’s beside herself when it’s suggested that it’s not unreasonable for a Muslim woman to request, request, a female doctor upon arriving at an emergency room. She refuses to believe that an asymmetrical democracy sometimes means showing asymmetrical consideration. I realize — hey! — here’s my chance to explain Martha Jackman’s false dichotomy between rights and democracy. But I decide against this, mostly because I don’t want to show off, but also because I suddenly realize it won’t help her.

There’s a portion of society that the Charter leaves behind. The poor and First Nations, for example, get left behind because the whole deal works only in a circumstance of general plenty. You don’t get to obsess about rights when your life is chaos. ( There’s a tangible, moral struggle to get everyone inside the tent, to create that circumstance for everyone, and until that struggle is over the country can’t be called a legitimate success.) But then there’s this woman, clearly as privileged as I am, who chooses from fear to thrust away the gift. The Charter will leave her behind, I think, and she’ll be left to complain to her shrinking circle of friends and write letters to the editor of the Montreal Gazette. There’s a courage required, I realize, to engage in the act of citizenship: you have to be willing to reassess what your world consists of every time you encounter someone else.

Finnerty is doing a fantastic job of keeping the tone right. There’s a sense that things could go negative, but he’s a calming and jovial influence. He twists himself comically to ask a general question: “If it’s unreasonable, applaud . . . if it is unreasonable . . . is it unreasonable, ah unreasonable not to . . .” He stops, thoroughly contorted syntactically, and we laugh, and some tension is dispelled. He doggedly attempts the same question later, fails as spectacularly as before, and gets us out of another tight spot.

Sarah Elgazzar, the young and articulate spokesperson for cair-can, reveals that she wears a head scarf in spite of her parents’ concern about standing out, sounding like the daughter of feminists who insists on wearing a tube top to school. Then Diane Wood- Nolan, principal of Montreal’s Coronation Elementary School, where there are more than a dozen different first languages among the students, stands to inform us that there are absolutely no problems among her charges. She, like the rabbi, refuses to acknowledge that there’s any way to behave outside of unbridled generosity. Christmas, to her, is an opportunity to make every kid feel special by celebrating every single faith and culture known to her students. She’s also open-minded and pragmatic, saying the school doesn’t serve pork in the lunchroom because half the kids don’t eat it and it wouldn’t sell. She, like the Charter, is insisting we listen to our better selves.

The event wraps up. Nothing is solved, everyone (most everyone) feels better, and the crowd disperses. It’s now that I realize there’s almost no one from the day sessions here to witness this. A few students, a panellist or two. I understand why — I was feeling a little snobby about going to this event myself — but it’s too bad that some of the framers, some of the people who backed the country into this particular spot, aren’t around to see how well it’s worked out.

As the next day dawns, unaware that it has already reached its climax, the conference trundles on. Raphaël Picard, Chief of the Innu Council of Pessamit, refuses to talk specifically about the Charter, focusing instead on how Canada has failed to live up to Article 35 of the Constitution, aboriginal rights. He considers the Charter, I get the feeling, to be a little fancy — pointless to discuss when there is such a fundamental contradiction between his people’s aspirations and their situation.

Next is a plenary on the Charter and security. Irwin Cotler tells us with a kind of subdued glee that his own negative comments about parts of the anti-terrorism legislation helped strike down sections of the bill in court challenges. Lorne Waldman, one of Maher Arar’s lawyers, says that almost every Charter challenge he’s made has lost. This forces me to reconsider the popular complaint of a too-liberal judiciary. Federal privacy commissioner Jennifer Stoddart points out that privacy rights were omitted from the Charter and that given all the surveillance used these days, as well as how many places on the Internet have my credit card number, this could be a problem.

The next session, on equality, is a great reminder of how the Charter only works for society’s fully enfranchised. Graham Fraser, Canada’s Commissioner of Official Languages, acknowledges the conference’s reunion-y atmosphere and then talks about how, after the Night of the Long Knives, bad information made its way to PQ officials in Quebec City, leading them to believe that Quebec had been included in a renewed Constitution. Celebration turned to despair when the truth arrived. It’s odd to think of Quebec that way, but Fraser insists that a desire to be reconciled to the Constitution has always existed here. The distance between the Quebec described in this anecdote and the common notion of a hard-assed and perpetually offended province is surely the most poignant contradiction of the event so far.

Donna Greschner from the University of La Verne in California says that the Charter’s promise has been eroded by the rise of the free market. Iain Benson from the Centre for Cultural Renewal insists that what we need is a “constitutional forum in which citizen groups can debate the matters of the day.” He may be right about the need for an institutionalized stitch ‘n’ bitch for the people, but by now, to be honest, I’m getting antsy. Lunch comes just in time.

The final panel is on the notwithstanding clause, also known as the herpes outbreak on the upper lip of the Charter. Like herpes, it revolts some people; also like herpes, it acts as a curb on rash behaviour. Jamie Cameron, editor-in-chief of the Osgoode Hall Law Journal, gets to the heart of the framers’ relentless quest for checks and balances by calling the Charter “militantly equivocal.” But does a section that insists that the federal or provincial governments can override court decisions on certain rights weaken the entire document or not? It was meant in part as a way for provinces to opt out of federal programs when their own make more sense for their particular populations — another chance for some flexibility, for a smidge of asymmetry. It was also, hilariously, the least-discussed clause during the Charter’s creation (or so we were told). In twenty-five years, outside of Quebec it’s only been used a handful of times, and never by the federal government. Is it too cumbersome, too easy to ignore, or is its dormancy proof that the rest of the Charter works well?

The notwithstanding clause is the puzzle at the centre of the Charter, and it reflects the framers’ insistence that we live amid contradiction and even a bit of chaos. It ensures that nothing is taken for granted, that each and every step of our democracy’s advance is questioned, grubbied up, prodded, fiddled with, complained about. At the very least, it ensures that we pay some attention to what’s happening (to us or on our behalf ). And it may not have been the idea behind the Charter, but the result of all this forced consciousness is that the country remains resolutely undigestable, unabsorbable, unique. Our jagged and shifting asymmetry, our fat and pointy sidewaysness, makes it impossible for us to slide down the throat of anything that might threaten us, now or in the future. It ensures that we will be admired but never consumed. And it happens, like the greatest moments of theatre, while our attention is misdirected. A play succeeds when the thing that moves you isn’t the event onstage but the thing that’s implied by the action. The country works when we elbow each other for room and wring meaning out of imperfect documents like the Charter, not when we try to achieve some sort of organizational perfection. The supreme contradiction, really: that only by obsessing over mine do we create the great ours.

The last event is an eagerly anticipated confrontation between one of our Supreme Court justices, Ian Binnie, and an American one, Antonin Scalia. I recognize this for what it is: an attempt by amateurs to manufacture theatre by aiming for conflict instead of contradiction. Finally, I get to feel superior about something, after several days of being beaten down by sophisticated concepts and crushing jargon. I’ve come to appreciate the tensions between the striving lines and the drifting hand of our own drama. So I forgo the sham theatrics, pack my bag, and take an early flight.