Canada reverts to infancy
D. J. Heasman
It is often said that the difference between the United States and Canada is that while the one resorted to revolution to establish its nationhood, the other 'wisely' chose to rely on evolution. What this means is that Canadians, who had chosen to remain British rather than to become American, have subsequently acted out American history in stages, retaining enough that is British at any one stage for the country (or its government) to be able to assert itself against 'vestiges of colonialism' at the next. Thus it was that Mr Trudeau, earlier this year, was able to raise a cheap laugh from a crowd of entertainers in Toronto (a city which still has its Empire Club) by dismissing British resistance to his plans for constitutional change as a case of 'the Empire strikes back'. He was referring to the report of a British parliamentary committee — the Kershaw report — which opposed the idea that Britain should legislate for Trudeau against the objections of the provincial governments.
How typical that the Canadian Prime Minister should portray himself as being in conflict with 'Empire' in the very year that Canadians are celebrating the 50th anniversary of Empire's demise. For the Statute of Westminster, 1931,, was the Act which, for Canada and other Dominions, put the legal seal on the transformation of Empire into Commonwealth. It also sought, at the unanimous request of the federal and provincial governments in Canda , to entrench the division of powers between them by re-affirming that any changes in the British North America Acts (the 'written' part of Canada's constitution) were a matter for the British Parliament to determine. Britain's role is not therefore a hangover from Empire at all.
Mr Trudeau has no popular mandate for his plans to encroach on provincial powers, but has been behaving as if his victory in 1980, when he did not even mention the matter, had given him such a mandate. It is often argued in Britain that if Canadians do not like what he is doing, they will have their remedy at the polls. But the whole point of getting Britain to legislate is that the constitutional changes would be virtually irreversible. This is why the Canadian government wanted the whole thing to be out of Canada and in British hands before Christmas, and, then, when this proved impossible, before Easter — before the courts could pronounce. But for a ruling of the Newfoundland Court in March that what Ottowa was proposing was illegal, the Canadian government would have gone ahead (as would the British, for that matter) without reference to the Supreme Court of Canada. Even after the Newfoundland decision, Mr Trudeau initially offered no more than an undertaking not to 'press' the British government to proceed while the matter was sub judice.
This is typical of Ottowa's stance towards Britain. There has not been a hint of regret or appreciation for the trouble to which Britain was being put. The Minister of Justice, Mr Chretien, delcared, for example, that 'nothing can stop us'. This would be 'a British statute and there are no limits on what Britain can do', yet the British 'have to approve', 'they shouldn't look into it', 'it's none of their business'. When the Prime Minister was asked about the difficulties that Mrs Thatcher was facing at Westminster he replied: 'That's her problem'.
What the Canadian government's position amounts to is that, while it is convention rather than law which binds the British Parliament to do its bidding, convention can be ignored when it is a matter of securing provincial approval. Under these circumstances the only hope for the provinces was to seek to have the courts uphold the convention that provincial powers are not to be encroached on without their consent. Hence the importance of the Supreme Court decision expected this month.
If the decision is that what Ottawa is doing is unprecedented but not illegal, where would this leave Britain? Mrs Thatcher has said that the matter will be resolved according to law and precedent. As the Kershaw Committee argued, it would indeed be unprecedented for Britain to accede to a request to which eight out of ten provinces were opposed. If it be said that there is also no precedent for Britain refusing a request from the Canadian Parliament this would be because previous requests did not warrant such a refusal. The British Parliament is a trustee of the constituion, not simply because Canadians have been unable to agree on an alternative, but because they have agreed in particular that the alternative should not be the Canadian Parliament. How, then, can it possibly be right for Westminster automatically to obey Ottawa?
Whatever happened to Mr Trudeau's earlier plan to place the constitution under exclusively Canadian legal authority and to limit the role of the British Parliament to a final one-clause Act of Recognition? Had this idea been implemented, there need not have been any differences between Canada and Britain. It would certainly have been a more appropriate solution for those like Mr Trudeau who have been saying for years that it is not enough for the country to be independent, but that autochthony is what should characterise the new Canada, a Canada to which Britain would be a 'foreign country'.
Actually, it is not quite enough for Mr Trudeau that Britain should be foreign. There needs also to be a little hostility, so that Canada is seen to be 'standing up' to the other country and can point to how independent it has become. A schoolboy, at a question and answer session with the Prime Minister may have been a little old fashioned in referring to Britain as 'the mother country' but did Mr Trudeau really have to snap back 'It isn't my mother country'? Not so long ago it was assumed that because Canada and Britain shared a common allegiance to the Crown, neither was foreign to the other and their relationship was therefore considerably closer than the 'special relationship' between Britain and the United States could possibly be. Now we seem to have an unfortunate combination of foreigness and a presumption of intimacy. An ally of Mr Trudeau, the Premier of New Brunswick, has warned Britain that Canada might declare independence unilaterally. (This presumably, would be a kind of mini-re-enactment of 1776 to re-achieve 1931.) Why, he said, Canada might even leave the Commonwealth. Canada makes herself foreign, but when her leaders want her once more to play the part of injured victim of colonialism, they suppose that the old country is still there, still good for a knock, still not wanting the old connections to be broken, not having noticed that they were broken long ago. Was it not Mr Macmillan some 20 years ago who had to remind someone or other that Britain, too, was independent now?
Would it not be better if Canadian ministers gave up the habit of trotting out complaisant platitudes about Commonwealth ties (and loyalty to the Crown) when visiting Britain, having done so much to destroy them back home? Let those in London, who play host to such visitors, and who pride themselves on the frankness with which sensitive matters are confidentially broached, remember what happened to the British High Commissioner in Ottawa this year when he ventured to engage in the same kind of discourse with two Canadian MPs at the Governor-General's skating party. It was not a pretty sight to behold the sanctimonious demeanour with which one of them, with his leader, divulged at a press conference what had transpired, nor to observe how the External Affairs Minister contrived to besmirch the retiring diplomat's reputation.
For anyone who remembers Canada's standing in Britain and Europe at the end of the war, it is painful to contemplate Mr Trudeau's reduction of Anglo-Canadian relations to such a parochial level, reflecting merely his own domestic preoccupations. That is why many patriotic Canadians are embarrassed at what he has been doing in their name.
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