Notwithstanding

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.”