Full Comment - Liberals are ‘hijacking’ the Charter, says Canada’s last living framer of the Constitution

00:00:00.000 Visit BetMGM Casino and check out the newest exclusive,

00:00:05.200 the Price is Right Fortune Pick.

00:00:07.340 BetMGM and GameSense remind you to play responsibly.

00:00:10.140 19 plus to wager.

00:00:11.460 Ontario only.

00:00:12.540 Please play responsibly.

00:00:13.760 If you have questions or concerns about your gambling or someone close to you,

00:00:16.880 please contact Connects Ontario at 1-866-531-2600 to speak to an advisor.

00:00:22.900 Free of charge.

00:00:23.960 BetMGM operates pursuant to an operating agreement with iGaming Ontario.

00:00:30.220 This episode is brought to you by TELUS Online Security.

00:00:33.740 Ugh, tax season is the worst.

00:00:36.380 You mean hack season?

00:00:37.920 Sorry, what?

00:00:39.140 Yeah, cybercriminals love tax forms.

00:00:41.980 But I've got TELUS Online Security.

00:00:44.000 It helps protect against identity theft and financial fraud,

00:00:47.160 so I can stress less during tax season, or any season.

00:00:50.620 Plans start at just $12 a month.

00:00:52.760 Learn more at telus.com slash online security.

00:00:55.280 No one can prevent all cybercrime or identity theft.

00:00:58.180 Conditions apply.

00:01:00.000 Canada's Constitution and the Charter of Rights and Freedoms.

00:01:05.600 It is up for debate at the moment.

00:01:08.060 In fact, it is before the Supreme Court.

00:01:10.360 Should the Supreme Court be able to change the Charter of Rights, though,

00:01:13.840 without any say of the general public, of the political class?

00:01:18.180 That appears to be what is going on right now in the battle over Bill 21 out of Quebec.

00:01:23.220 We've talked about that before, but today, a different view of how all this came together.

00:01:27.880 Hello and welcome to the Full Comment Podcast.

00:01:29.700 My name is Brian Lilly, your host, and today an interview with one of the few people who got to sign it and the only one that is still with us today.

00:01:38.220 Brian Peckford was Premier of Newfoundland and Labrador from 1979 until 1989 and was there for the discussions that led to Pierre Trudeau patrioting the Constitution,

00:01:49.200 installing a charter into Canada, and the compromise that he had to strike with the Premiers.

00:01:53.900 And he joins me now from beautiful British Columbia.

00:01:58.340 Premier, thanks for the time.

00:02:00.320 Thank you, sir, for inviting me.

00:02:02.280 I'm looking forward to it.

00:02:04.520 So there is a lot of debate and a lot of false claims about it,

00:02:10.340 but let's go back to the beginning.

00:02:13.080 When did you first hear about Pierre Trudeau deciding that he wanted to have a charter of rights?

00:02:20.660 Because that's not really part of our judicial heritage,

00:02:25.620 our political heritage coming out of the british common law system but he was determined so when

00:02:31.940 did you hear that this was something he wanted to add on above and beyond john dieffen baker's

00:02:37.560 bill of rights well back in 1980 i became premier in 1979 but in early 1980 there was a discussion

00:02:49.140 about patriating the Constitution, in other words, doing something that we had been impossible to do.

00:02:56.700 We started this business of trying to patriate the Constitution, in other words,

00:03:00.700 make sure that in future all changes to our Constitution will be done in Canada.

00:03:05.520 That's what the patriation thing meant. It meant an amending formula.

00:03:08.980 Because we never had an amending formula and why, therefore, we had to go back to Britain up until 1981.

00:03:16.720 Any changes had to go through the British Parliament prior to that?

00:03:19.720 We didn't have anything in the BNA Act demonstrating or authorizing Canada's Parliament to change the Constitution.

00:03:31.000 And so we needed to go back to the British Parliament.

00:03:33.660 But this has been ongoing since 1927.

00:03:37.500 1927, 1931, 1935, 1950, 1964, 1971, 1972, 1975, 76, 1977, and 1979. There have been efforts to

00:03:51.580 patriate the Constitution. Now, that wasn't to necessarily include the Charter of Rights and

00:03:57.900 Freedoms, but there had been talk. If you go back through the history and look at it in detail with

00:04:04.220 the provinces and the federal government that had been taught, because of what happened in the

00:04:08.380 United States back in 1776, about having something to enshrine our rights. That's why John Diefenbaker

00:04:15.100 did what he did back in 1960 in the Bill of Rights, but that was only a federal statute.

00:04:21.820 Canadians don't understand. Many ask me, why do we need a Charter of Rights and Freedoms?

00:04:27.100 Because we already had the Bill of Rights, but that Bill of Rights was a federal statute.

00:04:31.180 it was not a constitutional provision and so therefore it only applied to things

00:04:37.500 that were involved with the federal government it didn't apply to provincial laws it didn't

00:04:42.480 apply to municipal governments etc exactly exactly so it was just a federal statue and

00:04:49.360 canada is not federal canada is not a federal government canada is a federal government and

00:04:54.240 the provinces and the territories and that's been made clear right from day one the bna

00:04:59.540 But in any case, I want to make it clear that the whole business of patrioting the Constitution was nothing new in the 80s or 81 when it was raised again because it had been raised 11 or 12 times earlier in formal discussions and conferences were held and so on to try to find an amending formula.

00:05:19.320 But there was also talk about more individual rights, as is witnessed by the Bill of Rights of 1960.

00:05:28.620 So it wasn't just a Pierre Elliott Trudeau thing, even though especially Central Canada likes to think that way because they're there near the federal government and they're getting fed all this stuff by the federal government over the years.

00:05:44.000 For example, you said in your introduction that Trudeau patriated the Constitution.

00:05:49.560 He didn't.

00:05:50.520 Who did then?

00:05:51.820 The provinces and the federal government patriated the Constitution.

00:05:55.520 he it's not his constitution it's not his charter he could not do it without your cooperation in

00:06:03.020 that of your fellow premiers or we didn't do it without the cooperation of the federal government

00:06:08.200 you can turn it around right on his head yeah exactly but the whole idea the whole idea

00:06:15.120 that this was a pierre elliot trudeau thing has been a myth that's been around forever

00:06:21.160 notwithstanding great old John Diefenbaker

00:06:23.940 introducing the whole question of rights for individuals back in 1960.

00:06:29.860 The Bill of Rights is mentioned lots of times,

00:06:32.220 and then it's conveniently forgotten when people want to say,

00:06:36.240 this is Pierre Elliott Trudeau's charter, when it's not.

00:06:39.600 And his signature on it, when you go to get a charter rights and freedom,

00:06:43.460 you'll see a signature on it.

00:06:45.360 That's unconstitutional, and that's wrong.

00:06:47.680 That signature should be Pierre de Trudeau, yes, and all the premiers who signed on to the Patriation Agreement, which became the Constitutional Act of 1982.

00:07:00.860 too. You mentioned Diefenbaker's 1960 Bill of Rights being cited often. I have cited it before

00:07:08.360 because people will say, well, we don't have freedom of speech in Canada. We have freedom

00:07:11.700 of expression, which, you know, of course, expression includes speech, but it is directly

00:07:17.980 in Diefenbaker's 1960 Bill of Rights. It does say freedom of speech. I don't know why that argument

00:07:23.700 has always had uh but it is an ongoing one you mentioned 1931 and and i know you've read up on

00:07:30.760 the history of this i would have imagined that was around the time that the statute of westminster

00:07:35.700 yes there was during the statute of westminster britain granted full legal autonomy to canada

00:07:42.160 australia new zealand south africa the irish free state newfoundland your home province yeah was

00:07:47.960 still still not part of canada yet so why did they not when if they were going that far and

00:07:54.480 that's you know widely recognized as when canada took a took on its own um foreign affairs policy

00:08:01.480 for example why did we not patriot the constitution then it seems like a pretty big move why not go

00:08:08.920 the next step because there was no agreement on the on the mending formula 1927 we couldn't get

00:08:17.080 Then 1931, the Statue of Westminster, which passed, but there was no agreement.

00:08:22.320 Later, in 1935, right after the Statue of Westminster, there was another meeting and initiative to patriate the Constitution, and that failed.

00:08:31.780 It failed again in 1950, it failed again in 1964, it failed again in 1971.

00:08:36.840 So the whole idea of patriating the Constitution at the time of the Statue of Westminster is a good suggestion,

00:08:44.300 But there wasn't agreement among the provinces for an amending formula of how we would change it if we patriots.

00:08:52.140 So walk us through how the amending formula came to be in 1980-81 then, because obviously an agreement was had.

00:08:59.840 Right, exactly.

00:09:00.760 Absolutely, because once we began in June 1980, when there was an agreement after, by the way, the Quebec referendum earlier that year in May, the prime minister had said, and I wrote him about this and other premiers did too, that he couldn't do a bunch of things that Quebec wanted, but he would initiate a renewed federalism, he called it.

00:09:26.700 If you go back and look at the phraseologies, that's what was used, a renewed federalism.

00:09:31.640 Quebec hung on to that like it was the last, you know, really, really thought that that was an important phraseology for the prime minister to use.

00:09:41.880 And so we all, because we were all concerned about where Quebec was going, and so we were all concerned about this.

00:09:48.200 And so there was a meeting after the referendum amongst the provinces and the federal government to talk about, you know, what can we do here?

00:09:57.040 I had written the prime minister saying I've supported renewed federalism and was eager to participate in any way that would see that occur.

00:10:05.660 Other premiers did too.

00:10:07.480 And so we had a meeting and 12 items were agreed to to further discuss to try to patriate the Constitution.

00:10:14.560 That was in June 1980.

00:10:19.700 And then we had, in September, a full-scale constitutional first ministers meeting to further see how far the provinces and the federal government had come on the 12-point agenda.

00:10:33.140 That 12-point agenda was discussed from June to September by ministers from all the provinces and the federal government with input from their cabinets and their premiers and first ministers.

00:10:46.740 And so there was a lot of work done between June and September.

00:10:50.520 And then in September, what happened was we had a meeting to see whether we could get agreement to Patriot, plus individual rights and freedoms, but there was no agreement.

00:11:06.280 Trudeau was very frustrated by that, even though it was only from June to September, not a long time for something so fundamental to occur.

00:11:13.500 and so he decided that he would go his own way so in october he announced that he was going to

00:11:19.840 introduce legislation whereby they go on their own as a federal government like like sean fraser

00:11:25.680 is trying to do now like john sean fraser and the federal government trying to do now it's really

00:11:30.200 ironic and so we're going to pass legislation and patriate the constitution have a charter

00:11:36.120 rights and part of it because we can do that well he introduced legislation got passed because he

00:11:41.460 a majority government, but the things started to go off the rails because the provinces had

00:11:49.540 initiated opposition to this piece of legislation, and we went to court in Newfoundland, they went

00:11:55.780 to court in Quebec, and they went to court in Manitoba to see whether in fact what the

00:12:01.220 federal government was trying to do was constitutional. As that was going on,

00:12:08.740 There was a lot of debate in the House of Commons and amongst the Conservative Party of Canada

00:12:13.940 and others, thinkers and so on, about what the federal government was doing.

00:12:18.620 This was unilateral.

00:12:20.080 This was unusual because what he was doing was going to affect the powers of the provinces.

00:12:26.080 And by the way, I looked up this morning, we'll come to that in a minute,

00:12:30.220 but I'll look up this morning, it's never been done before in the history of Canada up to 1981

00:12:36.020 one where a federal government went ahead to make changes to the constitution which would affect the

00:12:41.300 powers of the provinces without consulting and getting the consent of the provinces. This was

00:12:46.500 breaking brand new ground. Finally, the federal government realized that they were in trouble

00:12:53.140 and they agreed with other parties and other groups that they should make a reference themselves,

00:12:58.980 not just should Newfoundland and Manitoba and Quebec do it on behalf of the group of people

00:13:04.100 group of provinces who opposed what he was doing, but the federal government agreed,

00:13:11.220 okay, we'll do our own reference and we'll include, and we agreed, the references and

00:13:16.400 the decisions of the other three courts.

00:13:18.120 So one big court case, and the result of that court case, this is never, never mentioned

00:13:26.380 anymore, was that the Supreme Court of Canada, whose members, many of whom were great friends

00:13:33.360 of Pierre Elliott Trudeau's voted against him and said, what you are trying to do is unconstitutional.

00:13:40.900 It was kind of a weird decision, if I understand correctly, in that they said, legally, you can do

00:13:46.620 this, but it will break convention and therefore is unconstitutional. So you can't do it.

00:13:53.240 Exactly. But that's the important point. And Trudeau knew right away, as did everybody else

00:13:58.140 in canada because everybody likes to bring up this little technical division between legality

00:14:03.520 and constitutionality constitutionality trumps legality every time so let's forget it because

00:14:09.400 it's not it's not really relevant it is it is an odd way to do it legally you can but by convention

00:14:16.680 you can't ergo unconstitutional it's because conventions was very much a part of the constitution

00:14:23.020 right from day one the constitution of canada is made up of right today the bna act and the bc and

00:14:29.480 the 1982 act plus other provisions that had been agreed to between all the parties during the time

00:14:36.600 through the courts and which became custom or which became known as convention in constitutional

00:14:41.320 terms so he knew the federal government knew and everybody in canada knew what the federal

00:14:48.200 government was trying to do was unconstitutional. That's the important point. People who are on the

00:14:54.040 federal government side love to emphasize the business of the legality, but legality doesn't

00:15:00.880 work if it's unconstitutional. So constitutional trumps legality every time. That's a minor 0.93

00:15:09.220 point which has become enlarged by people who want to take the federal government side.

00:15:14.260 oh and there are a great many of them uh among my colleagues in the media

00:15:18.900 oh my they're they're they're they're they're millions but but the proof of the pudding is in

00:15:25.680 the eating and what happened did the trudeau take the legality side and say i can still go ahead and

00:15:31.180 do this not on your life because he knew he couldn't it was unconstitutional because

00:15:35.760 constitutionality trumps legality every time and he came back to the table to get an agreement to

00:15:42.220 see if he could get an agreement in light of the decision by the Supreme Court.

00:15:46.680 Did that Supreme Court loss change how he was negotiating with you and the other premiers?

00:15:51.740 Did his attitude change?

00:15:53.560 Of course. Totally.

00:15:55.360 Totally.

00:15:56.660 Well, in the sense that they were looking for ways to appease or to satisfy what this court was saying.

00:16:07.340 But, however, at the end of the day, he was an extremely stubborn man.

00:16:11.060 and he still held out to try to get as much as he could get from his point of view.

00:16:17.480 And that was the 3rd and 4th and 5th of November 1981

00:16:20.820 after the Supreme Court of Canada decision had come down in September.

00:16:24.660 So that was just a few months later.

00:16:27.160 But to make a long story short,

00:16:29.560 I put forward on behalf of the government of Newfoundland

00:16:31.960 on the night of the 4th a written proposal, which is in my book,

00:16:35.680 And it's the written proposal that led to the Patriation Agreement being signed the next day.

00:16:42.680 And worked on it through the night with a number of other provinces.

00:16:46.680 And then the group of eight provinces that had opposed the federal government's unilateralism through their parliament met and approved what we had advised that night.

00:17:00.680 and authorized me to make the presentation to the last meeting on the 5th of November

00:17:08.920 to the full First Minister's Conference later that morning.

00:17:13.120 And I did, and that proposal, with a number of changes, became the Patriation Agreement.

00:17:21.780 Now, the group of eight did not include a man who would have been one of the more powerful premiers in the country at the time,

00:17:29.620 i'm bill davis of ontario and i ask this as someone sitting in queens park at the ontario

00:17:34.580 legislature why was bill davis not on taking the side of the rest of the provinces was he

00:17:41.560 so closely aligned with pure trudeau we were always puzzled by that why richard hatfield

00:17:50.020 and bill davis would take the side of the federal government and was never got clear to me why i've

00:17:55.820 never been satisfied with anything that Ontario said at the time or anything I've read since

00:18:02.440 to understand Bill Davis's position. It was quite peculiar to us. And by the way,

00:18:10.320 our group of eight, when we were talking on the phone and stuff, when we decided to oppose

00:18:14.460 what Trudeau was trying to do, this came up many, many times. A lot of the provinces were puzzled

00:18:20.600 because a lot of the problems was, I mean, we had dealings all the time

00:18:24.900 with Ontario, you know, with each other on different matters.

00:18:28.640 We had a previous conference every year, and so it was natural, you know,

00:18:33.320 for us to be quite close in talking about all kinds of matters of things.

00:18:38.840 But Richard Hatzell was a bit more, we understood,

00:18:43.500 in the sense that he was a bit more peculiar and unusual

00:18:47.920 in his approach to a lot of things.

00:18:50.120 So that didn't surprise us, because he was more eccentric. But Bill Davis was more along the lines, and his government, and his intergovernmental affairs people along the lines that we were, at least at the bureaucratic level, at the deputy minister level. So that was always a puzzle to us of why he would take that position.

00:19:09.340 So before we move on to the issue of the Charter, you proposed this on November 4th, the amending formula part.

00:19:18.420 It gets adopted November 5th.

00:19:22.140 Where were these negotiations taking place?

00:19:25.620 I've heard different things.

00:19:26.900 The kitchen at the Chateau Laurier, Mama Teresa's, the old...

00:19:32.640 That's all myth.

00:19:34.600 All that kitchen stuff and all that other stuff is myth.

00:19:37.300 The only documentation that is available to us is while I presented on the night of the 4th with a number of the group of eight and representatives from the others, except Quebec.

00:19:49.880 Quebec was the only one.

00:19:51.040 And there's an interesting sidelight because this has come up too a lot by a lot of your confreres in talking about this.

00:19:57.880 We ignored Quebec, right?

00:19:59.580 It was, as some professors said, the night of the Long Nives, which, by the way, when I questioned them, they couldn't prove what they were talking about.

00:20:07.300 but we tried to get Quebec in their hotel rooms

00:20:12.980 and they weren't there

00:20:14.400 we found out later that the Quebec delegation had gone over the hall

00:20:18.320 for a late dinner

00:20:19.500 so they weren't available

00:20:21.640 so I initiated a meeting with Saskatchewan

00:20:26.000 with Alberta, with British Columbia

00:20:29.040 with PEI and with Nova Scotia

00:20:32.080 and on the phone with Manitoba

00:20:33.720 okay

00:20:35.280 and through the night

00:20:37.360 they looked at my proposal

00:20:39.300 and through the night

00:20:40.760 with some

00:20:41.480 not big changes

00:20:43.800 this is all in my book by the way

00:20:45.880 this is all in my book

00:20:48.300 all these documents are in my book

00:20:50.620 it was a bestseller in 2012

00:20:55.200 a global mail bestseller

00:20:57.700 can people still find it

00:20:59.320 you can still pick it up on Kindle

00:21:01.120 and all the documents are in there

00:21:03.720 And it's been completely ignored by the, what shall I say, by the establishment.

00:21:09.900 Because all the documents are there.

00:21:12.460 Nobody else had the documents, only us.

00:21:14.020 I went to look for the documents, and here's our governmental secretariat of the federal

00:21:17.560 government when I was writing this book, and they had disappeared.

00:21:21.160 Hallelujah.

00:21:22.160 How come they disappeared?

00:21:23.160 Anyway, they're all here.

00:21:24.580 I still have the physical ones in my files here in my office.

00:21:28.660 Okay?

00:21:29.660 The documents are all here.

00:21:30.960 So that's the only one.

00:21:32.900 And Prime Minister Trudeau himself, the next day in interviews with the media,

00:21:37.260 where I was present at the same time because they were interviewing both of us,

00:21:41.240 looked at me and he said, here's the person and his proposal that broke the impasse today.

00:21:51.500 It's funny.

00:21:52.820 You hear about the United Law and Knives.

00:21:54.960 You hear about Mama Therese's, the kitchen stuff, all of that.

00:21:59.040 um and that is as you say the myth that has grown up and yet i talked to you who was the the premier

00:22:06.180 of uh of newfoundland at the time and i talked to um norman specter who was the uh i can't remember

00:22:14.780 for the exact title was principal secretary or chief of staff at the time to bill bennett

00:22:18.800 the premier of british columbia so people from opposite ends of the country and you two both

00:22:24.360 have the same story oh of course because and that's the only documentation i mean it's really

00:22:29.760 funny how the media have acted on this ever since 1982 because i had the documentation

00:22:34.500 the documentation is there and peter laughey confirmed that in in his book uh mel smith who

00:22:42.440 was by the way the chief constitutional advisor for bill bennett because specter was just the

00:22:47.760 principal secretary but the person who was advising bennett in in the documents that he made

00:22:53.480 to the university of the fraser valley which i found by the way nobody else had found these

00:23:00.220 documents only mean when i went to write this book in which he referred to the meeting that i

00:23:05.060 had that night and my document and my proposal and so on so all right we need to take a quick

00:23:11.140 break but when we come back let's get into the issue of the charter and the notwithstanding

00:23:15.260 clause because you and i are talking on april 17th 2026 it's the 44th anniversary of the signing

00:23:23.140 of the Constitution and the Charter,

00:23:25.560 bringing it into force.

00:23:27.400 And we've got some puff pieces

00:23:29.880 from my colleagues in the media

00:23:31.400 claiming things that just aren't so.

00:23:35.040 Back in moments.

00:23:36.500 Want to go electric without sacrificing fun?

00:23:40.080 That's the Volkswagen ID.4.

00:23:42.120 All electric and thoughtfully designed

00:23:44.360 to elevate your modern lifestyle.

00:23:46.480 The Volkswagen ID.4 is fun to drive

00:23:48.540 with instant acceleration

00:23:49.900 that makes city streets feel like open roads.

00:23:52.440 plus a refined interior with innovative technology always at your fingertips.

00:23:57.340 The all-electric ID4. You deserve more fun. Visit vw.ca to learn more.

00:24:02.960 SUVW. German-engineered for all.

00:24:06.520 In communities across Canada, hourly Amazon employees earn an average of over $24.50 an hour.

00:24:14.960 Employees also have the opportunity to grow their skills and their paycheck

00:24:18.980 by enrolling in free skills training programs for in-demand fields

00:24:23.060 like software development and information technology.

00:24:27.780 Learn more at aboutamazon.ca.

00:24:37.520 There were so many missed opportunities to catch this

00:24:41.140 before the devastating thing happened.

00:24:44.400 A third of them we found literally in the phone book.

00:24:47.920 These people were not afraid.

00:24:50.160 They knew that nobody was effectively hunting them.

00:24:52.800 They knew they had escaped justice, that they were going to die in their beds.

00:24:57.220 When I give talks at law schools is that the charter ultimately is empowering a minority,

00:25:01.040 and it's empowering a minority that's a guild across the country,

00:25:04.040 and it's a fairly elite guild, and the guild is lawyers.

00:25:06.060 Families who were split by referendum and brothers and sisters

00:25:11.180 who never talked to each other for years after the referendum

00:25:14.040 because they were so angry at each other because of the emotions on both sides.

00:25:18.820 The reason he was assassinated was not because he was trying to put a satellite into space,

00:25:23.500 but because the gun that he was creating had other applications

00:25:29.580 that made him and the gun very dangerous.

00:25:33.880 It's finally here.

00:25:35.440 A new season of Canada Did What?

00:25:37.700 Post-media podcast that revisits the big Canadian political events

00:25:41.440 you might think you remember, and tells you the real story you never knew.

00:25:46.280 I'm Tristan Hopper.

00:25:47.660 The voices you just heard are from our brand new Season 2.

00:25:51.480 We will unpack some of the pivotal moments that helped define our country,

00:25:55.180 often without a vote, usually without a plan,

00:25:57.800 and sometimes without anyone admitting what they'd done.

00:26:01.620 We'll find out how Canada became a welcoming paradise 0.70

00:26:04.660 for untold numbers of Nazi war criminals after the Second World War. 0.85

00:26:09.280 We let them build monuments to their wartime exploits

00:26:12.040 and even ended up honoring a Nazi fighter in the House of Commons.

00:26:16.100 And I'm sorry to say that none of that happened by accident.

00:26:19.880 We'll bring you the little-known story of a troubled Canadian rocket scientist

00:26:23.520 who turned to a sinister life of selling giant guns to terrible people.

00:26:28.940 And if that sounds like a spy novel, it ends like one too.

00:26:32.300 You'll hear the behind-the-scenes story of Quebec's attempted secession from Canada

00:26:36.120 and how very close we came to a political crisis that would have made Brexit look like a picnic.

00:26:42.540 You'll hear about how the much-celebrated Charter of Rights and Freedoms

00:26:46.400 turned into something its creators never wanted,

00:26:49.540 and how many of the most extravagant warnings about the document were all quickly proven true.

00:26:55.360 And you'll even hear about how authorities bungled multiple chances

00:26:58.980 to stop the deadliest terrorist attack in our country's history

00:27:01.960 and then proceeded to pretend it never happened.

00:27:05.460 These aren't dusty history lessons.

00:27:07.740 They're stories about power, ambition, madness,

00:27:10.240 and the things about Canada that a lot of people would rather ignore.

00:27:14.360 But not you.

00:27:15.740 You won't want to miss an episode.

00:27:17.680 Subscribe to make sure you get all of Season 2 starting March 2026

00:27:21.660 anywhere you get your podcasts.

00:27:26.840 So, Mr. Peckford, I have to ask you,

00:27:28.940 can you respond to this written in a CBC article today?

00:27:32.760 And I want to point out, this is not CBC quoting someone.

00:27:35.800 This is a CBC reporter, not a columnist, a reporter, just putting this out there as fact.

00:27:42.040 Here's the quote.

00:27:43.360 Section 33, that would be the notwithstanding clause,

00:27:46.380 Section 33 is only supposed to be used as a measure of last resort in exceptional circumstances,

00:27:52.120 but provinces are frequently turning to it to bypass judicial reviews.

00:27:56.800 your thoughts on that as someone who was there for the the grand bargain that allowed for the

00:28:03.420 notwithstanding clause to be there the amending formula to be there for the constitution to be

00:28:08.560 patriated number one where is the authority where does that reporter where is the evidence

00:28:17.220 or where is the authority to say that it was only supposed to be used uh very sparingly i don't i

00:28:25.620 I think she's just creating that or repeating it from somebody else.

00:28:29.440 It's not in the Constitution of 1982.

00:28:32.780 So where is this coming from?

00:28:35.000 It's not part of the Constitution.

00:28:37.580 She's making it up or somebody else is making it up.

00:28:40.220 Number two, it just so happens, however, that since 43 years, 44 years ago,

00:28:47.000 when the 82 Act came into being, it's only been used 12 or 13 times.

00:28:52.900 It's 14, 42 years, 43 years.

00:28:55.620 12 times in 43 years.

00:28:59.900 That's the actual reality of the situation.

00:29:04.860 So I don't know if you...

00:29:06.060 Most of it by Quebec, but not all of it.

00:29:08.360 Well, there was other provinces

00:29:09.540 that used it three and four times as well.

00:29:14.020 Yeah.

00:29:14.380 So?

00:29:15.180 So, number one,

00:29:17.220 there's no foundation anywhere in the Constitution

00:29:21.960 to support what that cbc reporter said number two the fact of the matter is after 44 years

00:29:30.240 it's only been used 12 or 13 times so but there has been this pressure by folks especially here

00:29:37.660 in central canada to delegitimize the notwithstanding clause exactly since the beginning

00:29:43.980 where did that start was trudeau really opposed to the notwithstanding clause was it people around

00:29:50.380 him that started this yes yes he was opposed from this was he didn't want this is why when people

00:29:58.520 say it's true it makes me laugh as a person who was there i witnessed all of this i was the one

00:30:05.560 who made the presentation that led to the patriation agreement he was not he was not in favor

00:30:11.660 of this he he wanted a more unified he wanted a more centralized canada we wanted the canada

00:30:18.560 that existed through the BNA Act and the separation of powers, right, the division of powers, whatever

00:30:23.840 you want to call it. And so he was opposed to this notwithstanding clause. He did not want it,

00:30:30.080 but he was forced if he wanted to be a part of the New Deal. And of course, at the time,

00:30:37.440 there were a lot of pressure on all of us that after all these years that, you know, we're going

00:30:43.440 going to have to do something we're going to you know we're we're we're you know this is this is 0.84

00:30:48.100 long 1867 and we still haven't got the power to amend their own constitution how foolish is that

00:30:54.880 i mean how how immature is that so we understood the gravity of the situation especially as it

00:31:01.700 developed after june 1980 the discussions of september 1980 and we wanted to continue the

00:31:10.440 discussions after September, even though there was an agreement, we weren't ready to throw in

00:31:14.800 the towel. But Trudeau was, and that's when he went to court. But right up until the night

00:31:22.800 and morning of the November 4th and 5th, the federal government were opposed to this. And

00:31:29.920 when they signed it, they signed it reluctantly. So you can be guaranteed that within the confines

00:31:37.320 of the federal government generally within the confines of the most of the ontario bureaucracy

00:31:43.080 which then supported davis and so on that there were a lot of people and in the media

00:31:47.800 who were on trudeau's side and who were against what we had done you had premiers from across the

00:31:58.220 country and across the political spectrum support it was yourself bill bennett uh sterling lyon

00:32:03.920 And you had people like Alan Blakeney, who, you know, very much a prairie socialist New Democrat premier, supported it.

00:32:14.960 Was Davis against the notwithstanding clause?

00:32:17.780 Was he siding with Trudeau on that as well?

00:32:19.780 They were mushy.

00:32:21.880 And near the end, in those third, fourth, and fifth, Ontario realized that they really got to try to help form, you know, be the big problems that they were.

00:32:39.400 and by the way

00:32:41.860 which is not recorded very often

00:32:43.400 there was a secret meeting

00:32:45.280 which Ontario was

00:32:47.860 involved in

00:32:48.580 with Trudeau and

00:32:51.580 representatives of the group of eight

00:32:53.000 on the night of the

00:32:55.620 third

00:32:56.040 or the night of the third

00:32:58.500 in which British Columbia

00:33:01.480 there were a number of proposals coming forward

00:33:03.420 from Saskatchewan, British Columbia

00:33:05.180 in particular and then mine

00:33:07.900 Mine was the third one.

00:33:09.200 There were others besides mine from the provinces.

00:33:12.380 And the group of eight chose two or three premiers who were, what shall I say,

00:33:22.480 that Trudeau wasn't totally negative towards because he and I didn't get along at all.

00:33:28.420 And other premiers were the same way.

00:33:30.340 So we chose two or three premiers with Bill Davis in order to secretly,

00:33:35.520 and Trudeau agreed, and this was all secret,

00:33:37.460 to look for a compromise, and he rejected everything.

00:33:45.240 So Alterio was, at the end, trying to maneuver themselves

00:33:51.000 into being the broker to put something together.

00:33:55.220 So it was never clear, when you asked the question directly to me,

00:33:59.560 whether they were opposed or in favor of the Outstanding Clause.

00:34:03.860 that remains in my mind and in all the notes I have

00:34:07.560 an open question. What we do know

00:34:11.040 because it happened and I was a part of seeing that it happened

00:34:15.460 that secret meeting with Trudeau to try to forego

00:34:19.580 and have the next day be a little bit more

00:34:22.820 you know cooperative and a chance

00:34:27.940 to get a deal. But that fourth day, November

00:34:31.840 Number four, where the Saskatchewan presented their proposal,

00:34:36.820 BC, by the way, backed off on their proposal and didn't present it,

00:34:40.160 which we were very upset about.

00:34:42.200 But then Saskatchewan had one and they presented theirs,

00:34:45.360 all of which went nowhere.

00:34:46.560 And that led to that night when I made that presentation secretly

00:34:50.140 in a hotel room to the group of eight,

00:34:53.860 which led to the patriation agreement on the 5th.

00:34:56.580 So Ontario, to be fair to them, as fair as I can,

00:35:00.880 because they then perpetrated the kitchen thing and all that with Romano and the Attorney

00:35:07.120 General of Ontario and Jean Chrétien. We never saw that. That never turned up anywhere. We never

00:35:12.240 saw that. Romano wasn't at the meeting that night with his government. We don't know where he was,

00:35:20.480 but Howard Leeson was there, the constitutional advisor to Blakeney, and Blakeney was there.

00:35:25.920 It was in Blakely's suite, as a matter of fact, that all this occurred.

00:35:29.320 We went over to the Saskatchewan suite and had the people from Alberta, people from British Columbia, like I say, Nova Scotia, PEI, and Manitoba on the phone.

00:35:40.440 So it is fair to say that near the end, Ontario was trying to assist in brokering something.

00:35:49.780 But wherever they were on any individual item, it was difficult to say.

00:35:53.100 that's interesting you know um people in ontario tend to put country first over province

00:36:02.560 they do so compared to if you're in newfoundland it's you know you're newfoundlander and canadian

00:36:10.340 um ontarians a lot of them probably wouldn't know the word ontarian because they just don't use it

00:36:16.640 you know it's canada first and which is a different mentality and perhaps that was part of what was at

00:36:22.060 play um could very well be there was no question i mean the the intergovernmental affairs people

00:36:28.060 and other people that i dealt with in ontario i mean up until then and afterwards with other

00:36:34.100 premiers were very very reasonable sensible highly competent people there's absolutely

00:36:40.340 no question about that i would never deny their competence i would deny their judgment in this

00:36:44.980 particular case part of the concern for ensuring there was an outwithstanding clause was judicial

00:36:51.780 overreach and judges having the final say. There's a quote from Peter Lockheed about,

00:37:00.120 you know, it didn't want the country ruled by judges. And he said, now we are. That was several

00:37:04.760 years ago, obviously. What is your view now? Because I look at provinces looking to use the

00:37:12.820 notwithstanding clause now. And my view is that if it is happening more frequently, or even talked

00:37:19.620 about as a potential remedy more frequently, it is because the courts are overstepping their bounds.

00:37:26.140 Absolutely no question, but let me just go back and put this in context, Brian,

00:37:29.800 this is extremely important. When Trudeau, after September 1980, when we left the table,

00:37:39.560 we were waiting to then agree to have another meeting and to continue the First Minister's

00:37:45.240 Conference on the Constitution. We were not willing to throw in the towel, as I said earlier,

00:37:49.620 There were people in our group of eight who warned us that Trudeau was not serious about dealing with the provinces.

00:37:58.780 We discounted it, including Quebec, of course, but others in the West and in the East.

00:38:05.120 By the way, one of the great people involved in this patriation who was never mentioned, besides Lyon is the stalwart, by the way, and then Lougheed and Blakeney and Bennett, was Angus McLean.

00:38:23.180 Angus McLean, the premier of PEI, was a common sense.

00:38:28.640 He was in the Diefenbaker government.

00:38:30.120 He was a minister of fisheries back in the Diefenbaker government.

00:38:32.920 had fought in the First World War and was a pilot

00:38:36.680 and received a whole bunch of awards and went back to PEI

00:38:40.900 and became a blueberry farmer and got involved in federal politics

00:38:44.600 and later in provincial politics and happened to be the premier,

00:38:48.900 thankfully, of PEI during this period.

00:38:52.460 But I have to say to you, so after that I want to say this.

00:38:57.760 When Trudeau unilaterally, we couldn't believe it.

00:39:01.980 some of us couldn't believe it, to the House of Commons,

00:39:05.160 I'm going to do this on my own.

00:39:07.940 That was crossing the Rubicon.

00:39:11.300 For people like me, you can go and you can find my document.

00:39:17.020 I was one of the first provinces, if not the first,

00:39:19.260 to actually outline completely our constitutional position in August 1980.

00:39:25.980 And talked about Turner, talked about individual rights,

00:39:28.720 and it was made public and given to all the provinces and the federal government,

00:39:33.040 we're very reasonable and very sensible.

00:39:35.200 But when Trudeau and the federal government left the table

00:39:40.820 and unilaterally went and did this without us knowing about it...

00:39:46.200 Did that make you decide that you needed that safety valve

00:39:49.820 for the notwithstanding clause?

00:39:51.300 Well, we knew then that the federal government was not to be trusted.

00:39:55.420 And even Angus McLean, a very reasonable man who had been a federal minister, sensible man, one of my heroes.

00:40:05.840 And when that happened, that, by the way, hurt our chances of getting Quebec on side.

00:40:15.620 Real bad.

00:40:17.120 Nova Scotia, Newfoundland, PEI.

00:40:21.440 I have always been more on the side of the Western provinces than Nova Scotia in particular, perhaps not PEI.

00:40:28.740 But that really hardened our position that at any deal that we struck, the provinces, we've got to be very, very careful that this federal overreach and judicial supremacy kind of stuff doesn't take full sway.

00:40:48.080 that was very very very important and it's often downplayed i'm so glad i'm still around

00:40:55.980 and if law he was here today or bennett or or blakene or mcclain or buchanan they would

00:41:03.400 completely support what i'm saying back to to what i was asking earlier do you think that

00:41:08.320 provinces are looking to use the notwithstanding clause more now because judges are going further

00:41:15.100 than they should but the evidence is not there to show that

00:41:18.020 it's talked about more you know why brian this is insidious

00:41:25.100 because the federal government is now about trying to usurp

00:41:30.960 and change the constitution illegally or on constitution they better say

00:41:36.760 so so they're now persuading people in the media as i just as i read that's

00:41:44.380 said, we've got to do something about this.

00:41:46.520 This is getting out of hand.

00:41:47.760 Well, it really isn't getting out of hand.

00:41:49.700 It's really getting out of hand on his mind and the federal government's mind

00:41:52.720 because they think the time is right now to do this.

00:41:56.160 They think this is about the best time that the court is going to be,

00:41:59.120 quite likely, more sympathetic to them,

00:42:02.720 and that this is a good opportunity to strike.

00:42:05.300 Let's talk about the amending formula then.

00:42:07.840 There is an amending formula that you took a long time to agree to,

00:42:11.600 and this was a big sticking point in the patriation discussions um and you require

00:42:17.700 seven provinces with 50 of the population but that the current government the carny liberal

00:42:24.760 government in ottawa is trying to amend the constitution with as little as four judges

00:42:30.960 in the bill 21 case does that seem right to you no it's not right wait it's unconstitutional

00:42:37.460 What he's doing is hijacking the Constitution.

00:42:41.160 Him and the court, the Supreme Court, should say to the federal government,

00:42:45.300 we're not even going to entertain your factum because this goes against everything,

00:42:52.800 every constitutional principle that we have, including the fact that it's not in the Constitution.

00:43:00.600 Federal government does not have the power, nor does the court.

00:43:04.160 They're out of line.

00:43:05.740 They're out of line.

00:43:06.540 they have no authority you can't point to me any authority that the federal government has

00:43:12.080 or the supreme court of canada has to change the constitution on their own by the way the wording

00:43:18.780 in the the section 33 is very clear there's nothing in it that says you can't use it more

00:43:25.280 than once it tells you how to use it more than once exactly exactly by the way the other thing

00:43:31.680 they never mentioned is that it's not everybody seems to think that it's done by the government

00:43:36.500 of that province. No, no, no, no, no, no, no, no, no. If they want to use the notwithstanding clause,

00:43:41.500 they have to go to their legislature and get approval. It's not just a cabinet of Quebec or

00:43:48.080 a cabinet of Alberta or a cabinet of Ontario that decides that they want to use the notwithstanding

00:43:53.660 clause. They are forced to go to their legislature and get it approved by the legislature. And then

00:44:00.520 it's only good for five years and if they want to continue it they got to go back and go to the

00:44:05.360 legislature again so it's extremely democratic it's using the representative bodies that we

00:44:12.020 have in existence the legislatures of the provinces it seems that some people would like to go back to

00:44:18.420 the myths that started to be created in 1980 and 81 and and run based on that rather than what the

00:44:24.760 document says uh let me just quote you one other thing in the in the court decision of the supreme

00:44:31.220 court of canada in 1981 they say this in no instance has an amendment to the constitution

00:44:40.220 been enacted which directly affected federal provincial relationships in the sense of changing

00:44:45.460 provincial legislative powers in the absence of federal consultation with and the consent of all

00:44:52.220 the provinces that's the supreme court of canada i i i wish that precedent mattered to the supreme

00:44:59.740 court of canada but i don't believe it does anymore and i don't think matters anymore

00:45:04.620 honest to god well one of the reasons that i say that the federal or the supreme court is

00:45:10.140 overstepping their bounds as you look at something like the saskatchewan federation of labor case

00:45:16.000 where Justice Abella said it's time to give benediction to this idea.

00:45:21.500 That's not a legal argument.

00:45:23.000 As I've pointed out many times before, that's not a legal argument,

00:45:26.220 but it's now the law of the land.

00:45:28.660 Good for you, yeah, good for you.

00:45:30.500 And by the way, I mean, the nerve of Mr. Fraser to stand up,

00:45:36.100 or Kearney, or any of these people, and try to change unconstitutionally 0.96

00:45:42.880 the Constitution of the country when they're the ones who froze bank accounts during the truckers

00:45:49.520 thing. They're the ones that the Federal Court of Appeal, the Federal Court has said,

00:45:54.960 were unconstitutional in implementing the Emergencies Act. The Federal Court of Appeal

00:46:00.160 has already agreed with the Federal Court in doing this, and now it's before the Supreme

00:46:05.200 Court of Canada because the federal government are trying to get the court to overturn what these

00:46:12.100 federal courts have said, that this was unconstitutional. So here they are in an

00:46:18.620 unconstitutional position right now because the Supreme Court hasn't ruled on the final thing on

00:46:23.560 the Emergencies Act. But by the way, the Emergencies Act itself was unconstitutional

00:46:28.040 in its implementation because it never conformed with the Charter. It never demonstrably justified

00:46:34.200 their actions, which is part of section one.

00:46:38.520 Especially given what Chief Justice Richard Wagner has already said

00:46:42.320 about the convoy, that is going to be a very interesting case to watch.

00:46:46.540 Well, he should recuse himself at the start because he

00:46:50.380 is conflicted, totally conflicted. So the Chief Justice should never have anything

00:46:54.380 to do with that Emergencies Act.

00:46:57.660 I would agree with that completely. Premier Prackford, it has been a great

00:47:02.340 pleasure to speak to you and hopefully we get a chance to do it again thanks so much i'm eager to

00:47:06.960 do it whenever you're ready full comment is a post media podcast my name's brian lily your host

00:47:12.180 this episode was produced by andre prue theme music by bryce hall kevin libin is the executive

00:47:17.420 producer make sure that you hit the subscribe button share this on social media tell your

00:47:21.940 friends about us thanks for listening until next time i'm brian lily

00:47:25.340 there were so many missed opportunities to catch this before the devastating thing happened

00:47:34.980 a third of them we found literally in the phone book these people were not afraid

00:47:40.200 they knew that nobody was effectively hunting them they knew they had escaped justice

00:47:45.480 that they were going to die in their beds when i give talks at law schools is that the charter

00:47:49.700 ultimately is empowering a minority and it's empowering a minority that's a guilt across

00:47:53.940 the country and it's a fairly elite guild and the guild is lawyers families who were split by

00:47:59.140 referendum and brothers and sisters who never talked to each other for years after the referendum

00:48:05.140 because they were so angry at each other because of her emotions on both sides the reason he was

00:48:10.420 assassinated was not because he was trying to put a satellite into space but because

00:48:15.220 Because the gun that he was creating had other applications that made him and the gun very dangerous.

00:48:24.780 It's finally here. A new season of Canada Did What?

00:48:28.600 Host media podcast that revisits the big Canadian political events you might think you remember

00:48:33.980 and tells you the real story you never knew.

00:48:37.140 I'm Tristan Hopper. The voices you just heard are from our brand new season two.

00:48:41.900 We will unpack some of the pivotal moments that helped define our country,

00:48:46.100 often without a vote, usually without a plan,

00:48:48.720 and sometimes without anyone admitting what they've done.

00:48:52.480 We'll find out how Canada became a welcoming paradise 0.72

00:48:55.560 for untold numbers of Nazi war criminals after the Second World War. 0.85

00:49:00.160 We let them build monuments to their wartime exploits

00:49:02.920 and even ended up honoring a Nazi fighter in the House of Commons.

00:49:06.980 And I'm sorry to say that none of that happened by accident.

00:49:10.480 We'll bring you the little-known story of a troubled Canadian rocket scientist

00:49:14.400 who turned to a sinister life of selling giant guns to terrible people.

00:49:19.840 And if that sounds like a spy novel, it ends like one too.

00:49:23.200 You'll hear the behind-the-scenes story of Quebec's attempted secession from Canada

00:49:27.020 and how very close we came to a political crisis that would have made Brexit look like a picnic.

00:49:33.420 You'll hear about how the much-celebrated Charter of Rights and Freedoms

00:49:37.300 turned into something its creators never wanted, and how many of the most extravagant warnings

00:49:42.620 about the document were all quickly proven true. And you'll even hear about how authorities

00:49:48.460 bungled multiple chances to stop the deadliest terrorist attack in our country's history

00:49:52.840 and then proceeded to pretend it never happened. These aren't dusty history lessons. They're

00:49:58.780 stories about power, ambition, madness, and the things about Canada that a lot of people

00:50:03.880 would rather ignore. But not you! You won't want to miss an episode. Subscribe to make sure you

00:50:09.820 get all of Season 2 starting March 2026 anywhere you get your podcasts.

Full Comment - April 27, 2026

Liberals are ‘hijacking’ the Charter, says Canada’s last living framer of the Constitution

Episode Stats

Summary

Transcript