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.
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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.
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