The Woman Behind the Charter

by Don Butler, The Ottawa Citizen

OTTAWA—Because of her, there are no pronouns in the Charter of Rights and Freedoms. Because of her, our political leaders found the words to express Quebec’s distinct identity in the Meech Lake Accord.

She wrote the Charlottetown constitutional accord, and drafted such momentous legislation as the Canada Health Act, the Clarity Act, the Young Offenders Act, the Access to Information Act, the Privacy Act and the 1980s overhaul of the Official Languages Act.

And though she didn’t draft the bill implementing free trade with the United States, she developed much of the framework for the legislation.

Mary Dawson (Photo: Patrick Walton)

Her name is Mary Dawson and if you’ve never heard of her, it’s probably because we forget that flesh-and-blood people must translate the initiatives, policies and whims of our political leaders into text that lives and breathes.

For the past quarter-century, as often as not, that job has fallen to Mary Dawson.

“Her legal footprints are all over the department,” declares Justice Minister Irwin Cotler.

“She’s like the Constitution incarnate. If you look at the historical constitutional moments of the last 25 years, she’s been a central actor in all of them.”

Dawson, one of Canada’s leading experts on constitutional law, retired in June on her 63rd birthday, ending a 36-year government career, the last 17 as associate deputy minister of justice.

A genial woman with a tight coiffure and an easy laugh, Dawson has also been a pioneer for her gender—the first woman to hold a senior position within the federal Department of Justice, and the first Justice lawyer to take maternity leave.

Her amazing run at the epicentre of our modern political history began in 1980, when she was named associate chief legislative counsel.

That connected her to the government’s constitutional file, which had been percolating quietly since the 1960s. Her timing was perfect; Pierre Trudeau was about to launch the historic initiative that would culminate in the 1982 Constitution Act and its seminal Charter of Rights.

What is beyond dispute is that Mary Dawson wrote the final draft. And, as she concedes, “the person who holds the pen has a certain amount of leverage.”

Dawson downplays her role in drafting the Charter and the other constitutional provisions. “I only became the person that held the pen at the end of the summer of 1981,” she protests. “I just happened to be there at the critical time.”

What is beyond dispute is that Mary Dawson wrote the final draft. And, as she concedes, “the person who holds the pen has a certain amount of leverage.”

When Dawson inherited the constitutional file, for example, there were four gender-specific references—”hes” and “hers”—in the Charter.

“I didn’t like that formulation,” she recalls, sitting amidst piles of clutter in her surprisingly modest fourth-floor office in the East Memorial Building.

Over the next six months, she managed to excise all the offending words. “I got rid of them by using nouns—there are no pronouns in the Charter. It’s a funny little point, but that’s the kind of control you have.”

Dawson was involved in pivotal meetings in November 1981 that produced the breakthrough “kitchen accord”—a constitutional deal struck amidst pots and pans at Mama Theresa’s restaurant.

As the politicians jawed, Dawson laboured through the night to draft a new constitutional amending formula for presentation the next day.

“Literally, I went home and I just had time for a shower,” she remembers. “I came back clutching this quite complex draft of the amending formula and they said, ‘Oh, we’ve changed our mind—that’s not what we’re going with.’”

As the politicians celebrated in front of television cameras, Dawson and her staff worked feverishly to translate the kitchen accord into legal text. “By the end of the afternoon,” she says triumphantly, “we had a final version.”

Surely the pressure must have been intense? “Not really,” she says, ever the professional. “The focus was on getting the job done, and getting it done properly. You didn’t think about pressure.”

In 1986, Dawson was appointed Assistant Deputy Minister in public law, which made her a key adviser on policy. (Brian Mulroney made her Associate Deputy Minister in 1988.) But she retained her drafting role as well. “I combined the two and sort of became a guru in constitutional law,” she laughs.

One of her first meetings was about something called the “Quebec round.” It was the beginning of the process that would become Meech Lake.

Like everyone, she was astounded when the first ministers swiftly accepted Quebec’s conditions for signing the constitution at Meech Lake in 1987.

At one point, she says, the politicians were struggling with the wording of the distinct society clause, one of Quebec’s bottom-line demands. Could she think of a way to tweak it, they asked?

“I said, ‘oh, yeah,’ sent it in, and the deal was done. That was very gratifying.”

A few weeks later, as the politicians tried to agree on Dawson’s text implementing the Meech agreement, she was again up all night, grabbing a taxi home when she finally finished about 6 a.m.

“About a week or two later, someone in our department sent me a note and said, ‘you can’t take a taxi at 6 o’clock and charge it.’ And I said, ‘well, did you notice it was 6 a.m.—and it was on the way home?’”

When Meech expired in 1990, says Dawson, “I really was devastated. I thought Meech was a great fix and a really simple fix.

“The whole debate around the distinct society clause was absolutely ludicrous. I mean, if Quebec isn’t distinct, I don’t know what they are.”

The successor to Meech, the Charlottetown Accord, was also her handiwork. But drafting Charlottetown was “horrendous,” she says. The deal was huge and sprawling, attempting to address a multitude of constitutional grievances in one package.

“It was very difficult to keep track of all the strands as a drafter.”

Dawson spent the fall of 1992 struggling to finish the document, so that the Canadian public would have a chance to actually study the document before voting on it.

“Nobody ever read it, I’m sure,” she says without rancour, “but it was a lot of work putting it together.”

After the 1995 Quebec referendum, Dawson led a team that prepared the 1998 Supreme Court reference that defined the conditions for Quebec’s succession from Canada.

Armed with that ruling, she drafted the Clarity Act, which spells out how the federal government should conduct itself should a clear majority of Quebecers vote yes to a clear question on sovereignty.

Of course, the Supreme Court chose not to define what would constitute a clear question or a clear majority. So neither does the Clarity Act.

“It’s one of the points I made constantly, and had to restrain people from,” says Dawson.

“You can’t go too far in defining something that the court has left deliberately up to circumstances.”

Long before anyone thought of her as the Constitution incarnate, Dawson broke ground of a different sort, becoming the first Justice Department lawyer to take maternity leave.

It was 1973, and female lawyers were few and far between.

“There were some women around,” she says, “but not a lot in the early years.”

At the time, women on maternity leave were entitled to 13 weeks of unemployment insurance. But the first eight weeks had to be taken before the birth. When she returned to work, she championed an amendment eliminating that requirement. It was duly enacted into law.

Dawson didn’t exactly ease into retirement.

Her final assignments included stickhandling the controversial same-sex marriage bill— “I can’t say enough about her singularly important role,” says Mr. Cotler—and the historic accord with the Assembly of First Nations on residential schools.

Reprinted with permission of The Ottawa Citizen.