Disorganized Labour: Unions and the Chater of Rights and Freedoms - Part Three

Part One, Part Two


Constitutional Battles in the New Democratic Party

While the Supreme Court deliberated, the internal battle within the NDP raged on. In an effort to bring both sides of the party back together, David Lewis and Tommy Douglas met with Blakeney and Broadbent and senior NDP staffers in Hull Quebec shortly before Lewis’ death in May 1981. The meeting was a dismal failure. NDP federal secretary, Robin Sears, described the meeting as “the most personal, vituperative, unpleasant, unnerving, disillusioning, disheartening, experience I have ever endured in my political life.”[1] Douglas and Lewis, who sided with Broadbent, were worried that the dispute over patriation would cause irreparable harm to the party.

The same fears existed in the CLC. One senior CLC official admitted to Judy Steed of the Globe and Mail that “many labour staffers were against Ed.”[2] The unidentified high-ranking union official went on to say that "Trudeau gave nothing on collective rights, which are political rights and should be dealt with in Parliament by elected people, not appointed judges – but under Trudeau’s package, power was being shifted to the courts, there was nothing about the right to a job... So there was more off-the-record support for Blakeney’s position in the executive council of the CLC. But the CLC didn’t want to start a public war with Ed."[3]

However, internal dissent within the CLC continued to mount. McDermott and Blakeney met in March 1981. According to Robert Sheppard and Michael Valpy, “The strongest message [Blakeney] received from Dennis McDermott was that the CLC president wished the constitution issue would go away so that the politicians could talk about unemployment, inflation and patriation – as he put it – of the economy.”[4] McDermott opened the March 9, 1981 CLC Executive Committee meeting by expressing his concern over “the continued harassment of Ed Broadbent by the Saskatchewan people with respect to the Constitution”.[5] The CLC President's message was clear: “Quit attacking the federal Party; they made a political deal and they cannot now walk away from it.”[6] Later that month, at the CLC Executive Council meeting, Nadine Hunt of the Saskatchewan Federation of Labour (SFL) further frustrated McDermott by urging the CLC to adopt a similar resolution on the Constitution to the one adopted previously by the SFL Executive. The resolution stated:
That the SFL, with respect to the Constitution, campaign for the following:

a) abolition of the Senate or at least abolishing their veto power
b) amending formula which recognizes population and regional areas of Canada
c) the Charter of Rights does not infringe on trade union rights such as compulsory membership in legitimate trade unions, compulsory check-off, and the right workers to organize into the union of their choice.
d) On other rights, the Constitution should provide an override clause which would give elected legislators, federal or provincial, the ultimate authority to amend/or implement legislation.[7]

It is interesting to note that three of the SFL's four proposals were eventually adopted by the Federal government. Nevertheless, the CLC President rejected Hunt's resolution by stating that the CLC Council had previously agreed to take a neutral position. The CLC President went on to express his disappointment over the fact that the SFL wanted to enter into the constitutional debate. McDermott “appealed to Sister Hunt to exercise restraint”.[8] Hunt's retort that the CLC was “doing a disservice to the workers of this country”[9] did not sway the head of the CLC. The minutes report that “President McDermott said that whether our remaining quiet turns out to be right or wrong, it was a decision made by this Council.”[10] In the end, delegates to the NDP’s 1981 policy convention voted roughly 2-1 in favour of Broadbent’s position.

In September 1981, the Supreme Court of Canada ruled in split decisions that although the federal government did have the authority to patriate the constitution unilaterally, in doing so, it would be violating a constitutional convention requiring substantive provincial consent. The Supreme Court’s decision in the Patriation Reference prompted a new round of constitutional consultation between Ottawa and the provinces. In November 1981, the federal government succeeded in gaining the support of every province, except for Quebec. During the “Night of the Long Knives”, Lévesque slept while the other Premiers and Trudeau hammered out a final agreement which included a Notwithstanding Clause to allay the worries of people like Allan Blakeney who feared judicial supremacy under the new Charter of Rights and Freedoms. Upon learning that the other Premiers had accepted Trudeau’s patriation scheme, Lévesque claimed that Quebec would neither sign, nor recognize the new Constitution.

Disorganized Labour: Alternate Explanations

Left-leaning critics of the Charter of Rights and Freedoms have taken numerous different perspectives on the issue of organized labour and patriation of the constitution. Michael Mandel has argued that labour's non-involvement in the patriation process stemmed from its belief that the Charter was of no consequence to Canadian unions.[11] Mandel's conclusion is partially supported by comments made by legal scholar Joseph Weiler. Weiler contends that "The union movement's refusal to attend the Special Committee hearings was not intended to be seen as a boycott or protest against the process of constitutional reform or the entrenchment of human rights in the Canadian Constitution. Rather, the leadership of the Canadian Labour Congress (CLC) decided that the unemployment rate at the time was so high that the unions could not use their limited resources to appear in front of another panel of politicians who were talking about the arcane issues of constitutional reform and human rights."[12]

Weiler's analysis, which was presented in 1985, is an excellent representation of the CLC spin which emerged after legal scholars first began hinting that organized labour had “missed the boat” or “fallen asleep at the switch” when it came to the Charter. Although Weiler's analysis omitted important information, (he fails to address the tension between the FTQ and the CLC or the internal dissent which existed within the NDP), it did superficially reflect the labour movement's desire to see the government deal with concrete economic problems rather than abstract constitutional issues. However, his analysis does not come close to a full explanation of the CLC’s motives. The CLC’s decision to not participate in the process of patriating the Constitution was significant for several reasons. Most importantly, the Congress allowed its preference for a strong centralized federal state to be overshadowed by the FTQ’s opposition to patriation. In other words, the tables had turned in the relationship between the CLC and the FTQ. For the first time, a provincial federation of labour was giving marching orders to the CLC. The CLC’s self-imposed censorship on the issue of patriation and the Charter of Rights and Freedoms left it out of step with its allies in the new social movements and arguably did a disservice to the Canadian labour movement outside of Quebec.

Admittedly, some members of the Congress were genuinely more concerned with inflation and unemployment than they were about the game of constitutional chess which was being played on Parliament Hill. It should therefore come as no surprise that the CLC Executive so easily acquiesced to Laberge and the FTQ. Labour leaders figured that the stakes were not high enough to merit a severe sovereignist headache. In general, dissident unions and provincial federations of labour (with the exception of British Columbia) lined up behind the CLC's position as an act of solidarity.

On April 17 1982, Queen Elizabeth II proclaimed Canada’s new Constitution Act. A few months later, the Supreme Court of Canada ruled that Quebec did not have a veto over constitutional amendments. In the aftermath of the Supreme Court decision, the FTQ, the CSN and the CEQ joined the Société Saint, Jean-Baptiste and released a joint statement asserting “cette Constitution... n’est pas, ne peu pas être et ne sera jamais la nôtre.”[13]

Summary

This article has focused on the CLC's experience with constitutional reform in the early 1980s. The first half of the paper was devoted to explaining why the labour movement excluded itself from the process of patriating the Constitution. Primary sources strongly suggest that the both the CLC and the NDP were internally divided over the issue of patriation. Whereas CLC executive members argued over strategy and how best to deal with party-union relations, the NDP was internally divided over both the substance and the process of constitutional reform. The Saskatchewan NDP, in particular, argued that the unilateral patriation of the Constitution with a Charter of Rights and Freedoms violated provincial rights and would give too much power to unelected and unaccountable judges. On the other side, Federal NDP leader Ed Broadbent and the party’s establishment argued that support for patriation of the Constitution was a longstanding party policy and that the Charter of Rights would protect the interests of minorities. In the end, Broadbent’s position prevailed and Premier Blakeney eventually agreed to a modified patriation scheme. The CLC’s position on patriation was shaped by its allies in both the NDP and FTQ. In the eyes of many English Canadian labour leaders, the FTQ's strong opposition to Trudeau's constitutional vision was offset by NDP leader Ed Broadbent's enthusiastic support for a strong Charter of Rights and Freedoms. Reluctant to offend its political allies in either camp, the CLC officially decided to remain a neutral observer as the debate over patriation and the Charter unfolded.

The second part of this article was devoted to critiquing alternate explanations for the CLC’s silence on patriation. Several scholars have argued that the CLC was either unaware or genuinely disinterested in constitutional issues and therefore did not play an important role in the patriation debate. However, primary sources strongly indicate that these explanations are simply insufficient. Although it is accurate to suggest that the CLC was not an active participant in the process of constitutional reform, inactivity should not be confused with disinterest. The Congress made a strategic political decision to exclude itself from the patriation debate to avoid an internal battle between its political allies in the NDP and its labour allies in the FTQ.

Patriation of the Constitution with the Charter of Rights and Freedoms, in many ways, represented the triumph of liberalism in Canada. As Reg Whitaker has correctly noted, “That the Charter should reflect an image of liberal rather than social democracy is not particularly surprising given the structure of Canadian society, and the philosophical make-up of the governing party.”[14] Of course, Whitaker recognized that the role of the Left had traditionally been to challenge the limits of liberal democracy. However, in assessing the NDP and CLC approaches to patriation, he has correctly noted that, even among left-wing activists, “democracy in Canada seems well defined by liberal limits.”[15] The NDP’s limited approach to the patriation debate, evidenced by its failure to argue the merits of, let alone demand, the inclusion of social and labour rights into the new constitution, demonstrated the party’s own political limitations.

For its part, the CLC’s hands-off approach to patriation, in many ways, vindicated the NDP’s weak position on constitutional reform. By refusing to apply any sort of pressure on the NDP to make labour rights a condition of the party’s support for constitutional patriation, the CLC abdicated its responsibility as an organization representing the interests of workers. Rather than participate in the constitutional debate, the CLC simply wanted it to disappear. Although the Constitution was patriated with a Charter of Rights and Freedoms in 1982, Quebec’s exclusion from the new Constitution ensured that Canada’s constitutional question had not yet been answered. If the patriation debate taught the CLC anything, it was that the Congress could not afford to sit on the sidelines and ignore constitutional questions while the media and politicians obsessed over them.


[1] Sears quoted in Love & Solidarity: A Pictorial History of the NDP, Cameron Smith, ed. (Toronto: McClelland & Stewart, 1992), 220.
[2] Unidentified CLC official quoted in Judy Steed, Ed Broadbent: The Pursuit of Power (Markham: Penguin Books, 1989), 253.
[3] Unidentified CLC official quoted in Judy Steed, Ed Broadbent: The Pursuit of Power (Markham: Penguin Books, 1989), 253.
[4] Robert Sheppard and Michael Valpy, The National Deal: The Fight for a Canadian Constitution (Toronto: Fleet, 1982), 132.
[5] CLC Executive Committee minutes, March 9, 1981.
[6] CLC Executive Committee minutes, March 9, 1981
[7] CLC Executive Council minutes, March 10-12, 1981.
[8] CLC Executive Council minutes, March 10-12, 1981.
[9] CLC Executive Council minutes, March 10-12, 1981.
[10] CLC Executive Council minutes, March 10-12, 1981.
[11] Michael Mandel, The Charter of Rights and the Legalization of Politics, 2nd ed. (Toronto: Thompson Educational Publishing, 1994), 259-262.
[12] Joseph M. Weiler “The Regulation of Picketing Under the Charter” in Joseph M. Weiler and Robin M. Elliot, eds. Litigating the Values of the Nation: The Charter of Rights and Freedoms (Toronto: Carswell, 1986), 213.
[13] Déclaration conjointe, 11 décembre1982
[14] Whitaker, A Sovereign Idea, 223.
[15] Whitaker, A Sovereign Idea, 224.