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Canada’s Constitution is its supreme law. It sets the rules for how we govern ourselves. How this supreme law was brought home from Britain is one of Canada’s great stories – full of melodrama and intrigue.
The shaping of the Canadian Constitution, the country’s “supreme law,” stretches back centuries. Indigenous, French, and British laws provided the bedrock for its creation. But the Constitution, passed in 1867, was a British law, which meant that any change to it needed to be approved by the British Parliament. Canadians wanted to patriate the Constitution, bringing it home and fully under our control. The patriation process, which came to a head between 1980 and 1982, was crucial but fraught with difficulty and was for a time, profoundly divisive.
All countries have a constitution of some kind. The constitution is the “supreme law” that spells out how government works, its powers and responsibilities, and often the rights and freedoms of its citizens. It is a set of rules that serve as a check on the authority of government.
Many of Canada’s constitutional rules are written in the Constitution Act, 1867 (formerly the British North America Act [BNA Act], 1867) and the Constitution Act, 1982, but some are to be found in other statutes, and in unwritten rules or principles necessary for effective governance. An example of the latter is the constitutional convention that the Governor General must provide assent to a Bill that has been passed by the House of Commons and the Senate. That is not written into the Constitution but is considered a convention.
Canada’s Constitution lays out the functions of the branches of government (executive, legislative, and judicial), and the levels of government (federal and provincial). It gives democratically elected governments the authority to pass and enforce laws, and draws boundaries around how governments must treat the country’s citizens. It defines jurisdiction: which matters are under the jurisdiction of the provinces (for example, education, health, resources) and which are under the jurisdiction of the federal government (for example, banks, defence, trade). Canada’s Constitution also recognizes Indigenous governance, but Indigenous peoples, who had their own laws and constitutions before the French and British settlers arrived, were not consulted or included in the drafting of the BNA Act in 1867. Many feel that the Canadian federation includes Indigenous as well as provincial and federal jurisdictions.
Finally, the Constitution includes rules about how it is to be interpreted and how it can be changed over time.
From Confederation in 1867 to 1982, Canada’s Constitution was still an act of British Parliament, a remnant of Canada’s colonial past. Throughout the first two-thirds of the twentieth century, Canadian (and British) politicians tried without success to make the Constitution a Canadian law, a process we called patriation. In order to patriate the Constitution, the federal and provincial governments needed to agree on how changes – amendments – would be made in Canada.
Why did patriation happen in the early 1980s when it had failed before?
Many in Canada, including Prime Minister Pierre Trudeau, were bothered by the fact that the Constitution was a British law. Trudeau was also keen on having rights and freedoms protected in Canada’s Constitution. Even before he was Prime Minister, Trudeau pushed for constitutional change, and between his election to the office in 1968 and patriation in 1982, the Constitution was never far from his mind. He sought to promote a philosophical ideal of a “just society,” with French and English Canadians in equal partnership. Indigenous peoples were not included in this partnership. They felt strongly that they should, at the very least, be consulted. Several premiers and political leaders believed the Constitution was important, but they did not agree on all of Trudeau’s objectives for constitutional change, nor on the process that he thought should be used to achieve it.
Many provincial governments had their own ideas about the Canadian federation and how powers ought to be divided – especially when it came to control over natural resources. The provinces wanted a rebalancing of jurisdiction, while Trudeau did not want to renegotiate the division of powers between federal and provincial governments. He wanted to restrict the negotiations to patriation, a charter of rights and freedoms, and an amending formula.
An amending formula that allowed for the Constitution to be changed without the British government’s involvement was essential to patriation. There had been many attempts to devise a formula, but they had all floundered for one reason or another. Changing a constitution must be difficult, but there has to be a mechanism to make it possible when there is broad agreement about the need for change. Several parties presented ideas about how much power and control should be exercised by Canadians, the provinces, the federal government, and Indigenous peoples in amending the Constitution.
Many political events shaped the patriation process of 1980–82. One was the sovereigntist movement that culminated in the 1976 election of the Parti Québécois (PQ), led by René Lévesque. The PQ called a referendum on sovereignty in 1980, asking Québecers if they wanted to separate from the rest of Canada. As he campaigned against sovereignty during the referendum campaign, Trudeau promised to renew federalism through constitutional change. In the end, the sovereignty side lost the referendum, and constitutional reform became an imperative.
Immediately after the referendum, Trudeau and his Minister of Justice Jean Chrétien started working with the provinces to make a patriation deal. After five months of negotiations, the federal and provincial governments could not come to an agreement. Frustrated with what he thought was provincial intransigence, Trudeau announced what he called the “People’s Package” on October 2, 1980. Trudeau proposed a resolution to the House of Commons that would authorize the federal government to go to Britain unilaterally and request constitutional patriation with his preferred amending formula and a charter of rights and freedoms.
The Prime Minister also announced the creation of the Hays-Joyal Committee, which would hold national public hearings designed to consult with Canadians on what should be included in their Constitution. This was the first time Canadians were asked to participate in constitutional deliberations, and it sparked significant engagement. Interest in the Constitution grew with the nationally televised hearings of the Committee. It heard a broad range of views from women, Indigenous peoples, people with disabilities, gays and lesbians, police chiefs, property rights activists, and many others. The level of interest and participation surprised everyone.
At the same time, Indigenous peoples increased their efforts to force Canada’s political elites to address their concerns. On November 24, 1980, hundreds of Indigenous people boarded the Constitution Express trains in Vancouver and rolled across the country, picking up supporters on the way to Ottawa to protest their exclusion from the constitutional reform process, and to demand that any constitutional changes respect their rights and treaties. Ultimately, the Indigenous lobby travelled to Britain, Europe, and New York to build international support.
Most of the provinces were furious with Trudeau’s People’s Package proposal because the federal government planned to patriate the Constitution without their agreement. Three provinces took the federal government to court to challenge its ability to proceed unilaterally. Six and eventually eight provinces (all but Ontario and New Brunswick) collaborated to develop a counterstrategy that would include the provincial governments. Called the “Gang of Eight”, they lobbied in Britain against the federal proposal.
In the end, the Supreme Court of Canada was asked to decide whether the federal government could proceed with patriation unilaterally. The Court ruled that by convention, Ottawa should obtain substantial provincial consent before proceeding. As a result, Trudeau agreed to hold a final round of negotiations with the provinces in November 1981. If these talks were to fail, he felt the federal government could hold a national referendum on his “People’s Package”.
The November patriation conference was rough and dramatic, but finally a deal was reached – without Québec.
There were other problems too. Women realized that the “notwithstanding clause” which allows governments to override several rights in the Charter would compromise the gender equality enshrined in sections 15 and 28. They organized by the thousands and eventually ensured that governments could not opt out of section 28 – that all rights in the Charter are guaranteed equally to women and men.
Rights for Indigenous peoples had been deleted from the final agreement. Premier Allan Blakeney of Saskatchewan insisted that if governments were willing to change the agreement to protect the gender equality guarantees in section 28, they should also reinsert the section that recognizes and affirms existing Indigenous rights and treaty rights. Eventually, the other governments agreed. But Indigenous peoples did not achieve the full recognition that they were seeking.
Finally, on April 17, 1982, Pierre Trudeau and Queen Elizabeth II met to sign Canada’s proclamation of the Constitution Act, the last leap to full Canadian sovereignty.
The Constitution Act, 1982 was a great act of political will. The national press called it Canada's “spiritual coming of age”. It forever changed the role of the courts, the powers of governments, recognition of Indigenous rights, and the way Canadians experienced their Constitution.
The government of Québec’s sense of betrayal is an enduring legacy of the 1981 conference. Its exclusion from the final deal shook Canadians for decades after.
In 1983 the federal, provincial, and territorial governments, and Indigenous groups came to an agreement on amendments that addressed Indigenous rights. However, two subsequent attempts to address the Québec issue – the fact that it had not signed the Constitution – and other pieces of unfinished business, failed and created a sense that amending the Constitution was extremely difficult, if not an impossibility.
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