Patriation of the Constitution
In 1982 Canada "patriated" its Constitution, transferring the country's highest law, the British North America Act, from the authority of the British Parliament — a connection from the colonial past — to Canada's federal and provincial legislatures.
In 1982, Canada "patriated" its Constitution, transferring the country's highest law, the British North America Act, from the authority of the British Parliament — a connection from the colonial past — to Canada's federal and provincial legislatures. The Constitution was also updated with a new amending formula and a Charter of Rights — changes that occurred after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country.
The patriation battle of 1980-81 originated in the failings of a half century of domestic diplomacy, and the unexpected second chance offered to Prime Minister Pierre Trudeau when the Liberal Party was swept back to power in February 1980. Canadian governments had been trying and failing to agree on a way of patriating and reforming the country's original Constitution, the British North America Act, since the 1920s. Six decades later, constitutional reform became one of several major Liberal initiatives and the federal government's immediate response to the ongoing Québec referendum campaign.
During the referendum campaign, Trudeau's Justice Minister Jean Chrétien lobbied against the wishes of Québec separatists, with campaign stops in numerous small towns across the province. Meanwhile Trudeau gave four major speeches, promising Québecers that, "We will immediately take action to renew the Constitution and we will not stop until we have done that" — a statement vague enough to defy definition, yet inspiring enough to help swing the tide in favour of the federalist forces.
Conceding defeat in the referendum on 20 May 1980, Québec Premier René Lévesque immediately demanded that the prime minister fulfil his constitutional promise. Trudeau quickly despatched Chrétien to arrange a meeting with all the premiers.
Charter of Rights
At this point it was debatable precisely how much provincial support Trudeau needed to patriate and amend the Constitution — which sets out the powers of both the federal and provincial governments and the make-up of the federation. Legally, in 1980, any change required the approval of the British Parliament. By political custom and convention, however, the more provincial governments that supported the federal patriation process, the better.
Trudeau assembled a group of aggressive constitutional advisers and a set of federal demands for new, centralized powers over the economy. He wanted what he called a "people's package" — including a new Charter of Rights and Freedoms — entrenched in the Constitution. Trudeau also called on the premiers not to use the constitutional talks as a means of bargaining for new provincial powers; he said the talks and the Charter itself were not matters for tawdry political trade-offs.
The premiers, determined to preserve or even expand provincial powers under a renewed constitution, responded angrily to these tactics. Still, they agreed to set in motion a uniquely Canadian event — a summer constitutional roadshow, a series of meetings across Canada between Cabinet ministers, senior officials and political aides, to explore the 12 agreed-upon agenda items for a formal, First Ministers' conference in early September.
By the time of the 8 September 1980 First Ministers conference (the 10th round of negotiations to be held since 1927 on the reform of Canada's Constitution), the battle lines had already begun to harden. On the eve of the conference, Lévesque quietly gave the premiers a leaked copy of Ottawa's 64-page, top-secret negotiating strategy, known as the Kirby Memorandum, after its chief compiler Michael Kirby, secretary to the Cabinet for federal-provincial relations. The document was leaked to the press on the second day of the conference, further souring an already bitter mood of distrust.
During four days under hot television lights, the premiers and the prime minister articulated, occasionally impressively, widely different visions of Canada, which were repeated backstage in private meetings. The intractable views of the participants led to the inevitable failure of the conference. On 2 October, following consultations with his caucus and Cabinet, Trudeau announced, not unexpectedly, that Ottawa would make a unilateral request to the British Parliament. The government planned to recall the Canadian Parliament early and press the resolution through by Christmas before significant opposition could be mounted.
The New Democratic Party, under leader Ed Broadbent, gave tentative approval to the plan, though it split his caucus essentially along east-west lines. The federal Conservatives, under besieged leader Joe Clark, strongly opposed the plan and used every procedural device at their disposal to halt the resolution. The resolution finally went before the Supreme Court of Canada in late spring 1981. When the Liberals invoked "closure" on the resolution to move it into the committee stage in Parliament, a handful of Tories rushed the Speaker's chair with fists waving, demanding to be heard.
The constitution fight offered Clark an explosive issue around which to consolidate his flagging leadership and an opportunity to advance his view of the country as a "community of communities." But his position underscored a rift between the federal Tories and their influential Ontario cousins. Ontario Premier Bill Davis and New Brunswick Premier Richard Hatfield, both Conservatives, supported the prime minister's plan.
Gang of Eight
The constitutional resolution, with the new Charter of Rights as its centerpiece, was offered to a special joint parliamentary committee for study, where it was harshly criticized. The first parliamentary committee to have its sittings televised, it was petitioned by 914 individuals and 294 groups. It sat for more than 65 days. Largely because of its deliberations, the first Charter was significantly redrafted five times. The revisions included the incorporation of provisions on aboriginal rights, sexual equality and equal rights for the disabled. The Conservative Party advocated the entrenchment of property rights, but the Liberals rejected this proposal because of opposition to it by their allies, the NDP.
The six dissident provinces most strongly opposed to the plan — Québec, Alberta, Manitoba, Prince Edward Island, Newfoundland and British Columbia — united to form a common front. Led largely by the strong-willed premiers of Québec, Alberta (Peter Lougheed) and Manitoba (Sterling Lyon), the group was joined eventually by Saskatchewan (Allan Blakeney) and Nova Scotia (John Buchanan). The dissidents, dubbed the Gang of Eight, mounted court challenges against the resolution in provincial courts of appeal in Manitoba, Québec and Newfoundland, and launched a public-relations campaign against it both in Canada and in Great Britain, where they lobbied Members of Parliament strenuously.
The Courts Speak
Meanwhile the Constitution Reference case was weaving a tortuous path through the courts. In February 1981 the Manitoba Court of Appeal decided 3-2 in favour of Ottawa. In April, the Québec Superior Court of Appeal, in a 4-1 decision, also supported Ottawa — both courts essentially saying that the federal government had the legal right to patriate and amend the Constitution, without provincial consent.
However, just weeks earlier, the three justices of the Supreme Court of Newfoundland had condemned the federal procedure unanimously. The Newfoundland judgement was handed down as the House of Commons was tied in procedural knots by the Conservative opposition, and while the eight dissident premiers were preparing for their own conference to sign an alternative constitutional accord, one that would limit the request to Britain to simple patriation with a different amending formula, promoted largely by Lougheed.
Trudeau suddenly agreed to submit his resolution to the Supreme Court of Canada for judicial settlement. But he would not meet the dissident premiers when they arrived in Ottawa on 16 April 1981, and he ridiculed their "April Accord" in which Québec's Lévesque had agreed to an amending formula that did not provide a specific veto for his province.
Supreme Court Decision
On 28 September 1981, the Supreme Court brought down its judgement; it found that Ottawa was legally allowed to make this request of the British Parliament but that the resolution offended the constitutional "conventions" developed in Canada over the years, referring to practices that were important but not legally enforceable. The court held by a 7-2 majority that no legal limit "to the power of the Houses [the House of Commons and the Senate] to pass resolutions" existed.
By a 6-3 majority, however, the court also ruled that whenever amendments were proposed that would reduce provincial powers, the presentation of a joint resolution by Ottawa without a "consensus" of the provinces would be a breach of constitutional convention. Although such practice was a matter of convention rather than law, the court argued that such conventions are of great significance. In the words of the court, "Constitutional convention plus constitutional law equal the total constitution of the country."
This split decision, interpreted as a messy win for both sides, soon sparked a final round of hurried negotiations and what the prime minister came to call "the one last time" conference, which began in Ottawa on 2 November.
Four Dramatic Days
On the first day of the four-day conference, the federal side appeared to take the initiative when Premiers Davis and Hatfield offered compromise proposals: Davis to forego Ontario's traditional veto over constitutional change, and Hatfield to postpone implementing parts of the Charter of Rights in New Brunswick for two years. After an opening round of public statements, the first ministers and their key lieutenants continued their discussions in a private room on the top floor of the conference centre. The rancour returned on the second day and the formal conference broke up at noon, to reconvene the following day.
The Gang of Eight, sequestered in their suite across the street from the conference center at the Château Laurier Hotel, debated a vague compromise plan put together by British Columbia Premier Bill Bennett. The plan suggested waiting to adopt much of the Charter of Rights, until it could be examined by a commission, which would report back with recommendations at a later date. Bennett, Lougheed and Buchanan took the scheme to Trudeau, who rejected it in an angry confrontation.
"The proposal by the Gang of Eight would not fly," wrote Howard Leeson, an advisor to Saskatchewan Premier Allan Blakeney, in personal notes at the time. "It was general discouragement at this point that anything would ever be agreed to."
A glum mood settled over some of the provincial delegations. Premiers Davis and Blakeney and their officials, who had run into each other that night at an Ottawa restaurant, continued private discussions through the evening. The two groups — Ontario allied with Trudeau, Saskatchewan allied with the Gang of Eight — at least agreed, wrote Leeson, "that we must find some way to prolong the talks in order that they might succeed, but there were very few ideas."
On the third day, Manitoba Premier Sterling Lyon departed the conference for the campaign trail; Lévesque, too, talked of leaving to attend the opening of Quebec's National Assembly.
That same day Blakeney put forth his own proposal, which was discussed around the conference table, but made no real progress. Meanwhile, an off-the-cuff remark by Trudeau that perhaps only a referendum could resolve the conundrum was well received by Lévesque, to the surprise of the other Gang of Eight premiers. Nearly all day was then devoted to discussing a possible referendum, and Trudeau emerged in the afternoon to announce to the press somewhat facetiously that there was a new Québec-Ottawa alliance.
Various ministers and advisors from the different provinces had been meeting privately in the meantime to discuss other options. By the end of the third day, the broad lines of a possible compromise agreement were beginning to emerge. What followed was a complex series of manoeuvres, where several individuals played key roles at crucial points.
The first step was a private meeting between three attorneys general — Chrétien, Saskatchewan's Roy Romanow and Ontario's Roy McMurtry— who had traded notes earlier that morning. In the mid-afternoon, Chrétien and Romanow slipped away to an unused kitchen pantry in the Ottawa conference center to examine some ideas, pulling McMurtry into the room partway through the discussion. The resulting "kitchen accord," as it became known, was not recorded in a formal written agreement, but in rough notes scratched by the men on two pieces of paper.
Most of the other provinces did not know about it, but the accord was significant in that it shaped the expectations of the governments of Canada, Ontario, and Saskatchewan, and helped bridge the divide between the Gang of Eight and the federal government. The prinicipal federal negotiator, Chrétien, had committed to a compromise that included a "notwithstanding clause" to limit the force of a new Charter of Rights. The clause would allow provinces to exempt their laws from certain Charter rights. This became a crucial element in winning enough provincial consent to forge a deal.
Blakeney learned about the accord from his attorney general, Roy Romanow, on Wednesday. When the formal conference adjourned that day, Blakeney invited his Gang of Eight colleagues to meet privately later that night to discuss the matter and flesh out a more complete package. At the same time, Ontario Premier Bill Davis offered to discuss aspects of the accord, as well as various other points, with Trudeau.
Deal Takes Shape
Meanwhile Newfoundland Premier Brian Peckford and his officials had prepared a draft proposal, containing some of the ideas already floated at the conference. That night, 4 November, officials from six provinces — Newfoundland, Nova Scotia, PEI, Saskatchewan, Alberta and BC, including at times some of the premiers themselves — worked in Saskatchewan's hotel suite to refine a proposal based on the Peckford document, with items added from the kitchen accord to make the proposal acceptable to Ontario and Ottawa. Ontario and the federal government were at this point unaware of the Newfoundland draft. At the same time, many members of the Gang of Eight did not yet know about the kitchen accord or the origins of its compromises -- yet vital clauses from each were melded into a single proposal.
Provincial delegations that weren't represented at the meeting, including Manitoba and Ontario, were eventually notified about the draft late that night. Ontario Premier Bill Davis was even pulled from his bed after midnight by Blakeney, who called Davis to seek his support for the package.
Crucially, the Québec delegation, staying at a hotel across the Ottawa River in Québec, was not notified during the night. It's unclear whether an attempt was made to reach Lévesque or his advisors by phone. Peckford says attempts were made, but that calls were not answered. Others say no attempt was made. "The general conclusion," according to Howard Leeson's notes, "was that Québec could never agree with anything, and specifically would not agree to this package . . . Nevertheless, it was agreed that the proposal must be put to Québec at the already scheduled 8 a.m. meeting of the Gang of Eight."
The failure to reach Lévesque that night — and instead, to present him with the completed package at a breakfast meeting on the final day of the conference — prompted Lévesque to claim that he was betrayed by the English-speaking premiers, who, he said, plotted against him on what became known in nationalist Québec circles as the "night of the long knives." That portrayal, whether fact or fiction, would be used to fuel separatist sentiment in Québec for years to come.
Peckford presented the draft agreement to the Gang of Eight premiers at breakfast the next morning, and later at the formal conference table to the prime minister and the other premiers. After some minor adjustments, the federal government, Ontario, and New Brunswick signed on, and the deed was done. Lévesque complained bitterly, and was ultimately the only premier who refused to sign the deal. He tried in vain to press Trudeau to embrace the earlier referendum option.
Constitution Act, 1982
By 5 November, the constitutional fight was essentially over. In the next few weeks, aboriginal peoples and women's groups lobbied successfully to reinstate certain clauses that had been dropped in the late-night compromise. The resolution was sent to London for relatively quick approval through the British Parliament, and Queen Elizabeth II came to Canada to proclaim the new Constitution Act at a rainy ceremony on Parliament Hill on 17 April 1982.
Earlier, Lévesque had left the conference in Ottawa prophesying dire consequences for Confederation. "'The Canadian Way,'" he said, mocking the phrase his fellow premiers had used to trumpet their compromise, was "to abandon Québec at the moment of crisis."
It was to be another five years before an agreement was reached to bring Québec into the constitutional accord. By then the players had changed — including Québec's premier, now Robert Bourassa and Canada's prime minister, now Brian Mulroney. Their deal to put a Québec premier's signature on the Constitution ultimately failed. (See Meech Lake Accord; Meech Lake Accord: Document.)
Frédéric Bastien, The Battle of London: Trudeau, Thatcher, and the Fight for Canada's Constitution, trans. by Jacob Homel (Dundurn, 2014); Ron Graham, The Last Act: Pierre Trudeau, the Gang of Eight, and the Fight for Canada (2011); Howard Leeson, The Patriation Minutes (2011).