Patriating the Canadian Constitution

For the last 30 years, politicians and the media have frequently recounted the same story about the patriation of Canada’'s constitution and the adoption of the Charter of Rights.

For the last 30 years, politicians and the media have frequently recounted the same story about the patriation of Canada's constitution and the adoption of the Charter of Rights. Most of the credit in this version goes to Prime Minister Pierre Trudeau, but three others are recognized for breaking an impasse in the negotiations in 1981: federal justice minister Jean Chrétien, Saskatchewan attorney general Roy Romanow, and Ontario attorney general Roy McMurtry. In his memoirs, Newfoundland Premier Brian Peckford argues that the key intervention came not from Romanow, Chrétien, and McMurtry, but from Peckford himself and the members of the Newfoundland delegation.

The long-accepted narrative goes like this. In the 1980s, Trudeau was determined to create a charter of rights and a procedure that would allow Canada to amend its constitution without seeking Britain's permission, a legacy from the country's colonial past. Trudeau faced opposition from eight provincial premiers (all but those from Ontario and New Brunswick), who formed the Gang of Eight to advance their own decentralized vision of Canada. After failing to come to an agreement with the provinces, Trudeau decided to proceed without them, but a Supreme Court ruling forced him back to the negotiating table.

Her Majesty Queen Elizabeth II signs the Constitution documents.

According to this version of history, the decisive moment came during a federal-provincial conference in November 1981. The deadlock between Ottawa and the provinces was broken when Chrétien, Romanow, and McMurtry left the main meeting room in the Ottawa Conference Centre and ducked into an unused kitchen pantry. There they reached a compromise, which journalists later mythologized as the "Kitchen Accord.” Seen as the backbone of Canada's new constitution, the agreement provided for a charter of rights and a notwithstanding clause that would allow legislatures to exempt legislation from the charter's terms. The accord also included a provision that the constitution could be amended with the approval of the federal parliament and two-thirds of the provinces representing at least 50 per cent of the Canadian population.

In Some Day the Sun Will Shine and Have Not Will Be No More, Brian Peckford provides documentation to support his claim that the patriation package of 1981 evolved from a Newfoundland proposal and not from the Kitchen Accord. In Peckford's account, he prepared a formal document, which was revised during the night of 4 November 1981, hours after the creation of the Kitchen Accord, in a meeting with representatives from several provinces. The next morning, Peckford presented the agreement to the federal-provincial conference. The federal government and all the provinces except Quebec agreed to the package, which, with a few amendments, became Canada's constitution.

Peckford's account brings long-needed balance to the story. The patriation process was a complex series of manoeuvres, in which several individuals played pivotal roles. To credit only Trudeau, Chrétien, Romanow, and McMurtry is to miss a large part of what actually happened. Many politicians and officials were present on the night of 4 November 1981 in the Chateau Laurier suite of Saskatchewan Premier Allan Blakeney, where six provinces accepted a revised version of Peckford's plan. Few of the participants in that historic meeting even knew about the existence of Kitchen Accord.

This is not to say that the Kitchen Accord was unimportant. It might not have had any direct effect on Newfoundland or many of the other provincial delegations, but it was essential in altering the positions of Ontario and the federal government. When Chrétien and McMurtry left the kitchen pantry, they were committed to an agreement that would include a notwithstanding clause to limit the force of a new Charter of Rights. Chrétien began to push Prime Minister Trudeau to accept such a deal, unknowingly preparing him for the Peckford proposal. Ontario similarly had moved to a place where it would accept what the Newfoundland premier was about to put forward. It was Romanow, through the Kitchen Accord, and not Peckford, who had forged an agreement with the governments of Canada and Ontario.

Brian Peckford deserves considerable credit for our constitution, alongside Pierre Trudeau, Jean Chrétien, Roy Romanow, and Roy McMurtry. Important too were Saskatchewan's Howard Leeson, Alberta's Peter Meekison, and countless other unelected officials who shunned the spotlight and have been largely ignored in the history books.

People like simple stories, and the media and politicians oblige. Yet there was nothing simple about our constitutional drama of 1981.