The Need for Patriation
The patriation (the term is uniquely Canadian) 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, after 9 months of aborted Tory rule. Constitutional reform became one of several major Liberal initiatives and, apparently by accident, the immediate response to the ongoing Québec referendum campaign, a political fight the federal Liberals had not expected to wage from the seat of power.
While Jean CHRÉTIEN lobbied against sovereignty-association in the numerous small towns across Québec during the campaign, Trudeau gave 4 major speeches, promising "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 PM fulfil his promise. Trudeau quickly despatched Chrétien to arrange a meeting with all the premiers.
In the weeks before the June 9 meeting Trudeau assembled a new cadre of aggressive constitutional advisers and a new set of federal demands. The concessions that Ottawa had been prepared to make in the failed round of constitutional talks in 1978 and 1979 were withdrawn; in their place the federal government, for the first time since the failed Victoria Conference in 1971 made significant demands of its own - for new, centralized powers over the economy - while at the same time insisting that the so-called "people's package" of patriation and enshrinement of a CANADIAN CHARTER OF RIGHTS AND FREEDOMS was not a matter for tawdry political trade-offs.
The premiers responded angrily to the change of tactics but nevertheless agreed to set in motion a uniquely Canadian event - a summer constitutional roadshow of ministers, senior officials and political aides to explore the 12 agreed-upon agenda items and to report to a FIRST MINISTERS CONFERENCE in early September.
However, by the time of the September 8 First Ministers Conference (the tenth 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 circulated to 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, helping to sour an already bitter mood of distrust.
During 4 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 October 2, 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 Parliament early and press the resolution through by Christmas before significant opposition could be mounted.
The New Democratic Party, under leader Edward 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 to move the resolution into the COMMITTEE stage, 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 William DAVIS and New Brunswick Premier Richard HATFIELD, both Conservatives and the only 2 to attend the aborted Victoria Conference in 1971, supported the prime minister's plan.
The constitutional resolution, with its centrepiece the Charter, 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 a total of 267 hours over 65 days; and largely because of its deliberations the first charter was significantly redrafted 5 times. The revisions included the incorporation of provisions on aboriginal rights, sexual equality and equal rights for the handicapped. 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 6 dissident provinces (Québec, Alberta, Manitoba, PEI, Newfoundland and BC) most strongly opposed to the plan united to form a common front. Led largely by the strong-willed premiers of Québec, Alberta (Peter LOUGHEED) and Manitoba (Sterling LYON), they were joined eventually by those of Saskatchewan and Nova Scotia. The group, dubbed the Gang of Eight (or sometimes the Group 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 MPs strenuously. These resulting pressures on the British government led to increased tensions between the 2 governments.
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. However, just weeks earlier, the 3 justices of the Supreme Court of Newfoundland had condemned the federal procedure unanimously. The Newfoundland judgement was handed down as the Commons was tied in procedural knots by the Conservative opposition and while the 8 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 Premier Lougheed.
Trudeau suddenly agreed to submit his resolution to the Supreme Court of Canada for judicial settlement but would not meet the dissident premiers when they arrived in Ottawa 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.
On September 28 the 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" which had developed in Canada over the years, referring to practices which were important but not legally enforceable. The court held by a 7-2 majority that no legal limit "to the power of the Houses 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 November 2.
On the first day of the 4-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 and Hatfield to postpone parts of the Charter of Rights for 2 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.
The Gang of Eight, sequestered in their suite across the street at the Château Laurier Hotel, debated a vague compromise plan put together by BC Premier William BENNETT. Eventually, Bennett, Lougheed and Nova Scotia Premier John BUCHANAN took the scheme to Trudeau, who rejected it in an angry confrontation. On the third day Saskatchewan Premier Allan BLAKENEY put forth his own proposal. Manitoba Premier Sterling Lyon was leaving at the end of the day for the campaign trail; Lévesque, too, talked of leaving to attend the opening of Quebec's National Assembly and expressed annoyance with Blakeney for advancing his own plan, which had not been discussed first with the Gang of Eight.
The Blakeney proposal was discussed at some length around the conference table, but 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 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 from the different provinces had been meeting privately in the meantime to discuss other options. The broad lines of an agreement were beginning to emerge. What followed was a complex series of manoeuvres, where several individuals played key roles at crucial points. Three attorneys general - Chrétien, Saskatchewan's Roy ROMANOW and Ontario's Roy McMurtry - had traded notes earlier that morning. In the mid-afternoon, Chrétien and Romanow slipped away to an unused kitchen pantry to continue with their talks, pulling McMurtry into the room partway through the discussion. The resulting Kitchen Accord was not recorded in a formal written agreement, but in rough notes scratched 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 federal government's principal negotiator, Chrétien, was now committed to an agreement that included a notwithstanding clause to limit the force of a new charter of rights.
At the same time, Newfoundland Premier Brian PECKFORD had prepared his own formal proposal. That night, November 4, officials from Saskatchewan, BC, Alberta and Newfoundland, working in Saskatchewan's suite, refined the Peckford document. They then presented it to Blakeney, who began calling the other premiers to seek their support, except for Lévesque, who was away from his hotel, and Lyon, who was campaigning and had been replaced at the conference by Manitoba's attorney general. Before morning, six provinces from the Gang of Eight had accepted the draft text (Newfoundland, Saskatchewan, Alberta, British Columbia, Nova Scotia, and Prince Edward Island). A seventh (Manitoba) was informed that night and agreed the next morning. The consensus of those present was that Quebec would reject the agreement, so no effort was made to communicate with Lévesque until morning.
Peckford presented the agreement to the whole Gang of Eight at breakfast the next day and later at the conference table to the prime minister and the premiers. After some minor adjustments, the federal government, Ontario, and New Brunswick signed on, and the deed was done. Lévesque complained bitterly, refused to sign the accord, and tried in vain to press Trudeau to embrace the referendum option.
By November 5 the constitutional fight was essentially over. In the next few weeks, native 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 Britain for relatively quick approval and Queen Elizabeth II came to Canada to proclaim the new Constitution Act on Parliament Hill 17 April 1982.
On that same day Lévesque left 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 5 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.
Author ROBERT SHEPPARD Revised: STEPHEN AZZI
Links to Other Sites
The website for the Historica-Dominion Institute, parent organization of The Canadian Encyclopedia and the Encyclopedia of Music in Canada. Check out their extensive online feature about the War of 1812, the "Heritage Minutes" video collection, and many other interactive resources concerning Canadian history, culture, and heritage.
Constitution Acts, 1867 to 1982
This website offers an official consolidation of the text of the Constitution Act, 1867 (formerly the British North America Act, 1867), together with amendments made to it since its enactment, and the text of the Constitution Act, 1982, as amended since its enactment. The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms and other new provisions, including the procedure for amending the Constitution of Canada. From the Department of Justice.
Constitutional Patriation: The Lougheed-Lévesque Correspondence
See selected correspondence between Alberta Premier Peter Lougheed and Québec Premier René Lévesque in 1982, sent immediately after the patriation of the constitution. Focuses on events prior to the signing of the final agreement and concerns about Quebec’s sense of betrayal at that time. Historical context is provided in the document. From the Institute of Intergovernmental Relations at Queen's University.
Fundamental Freedoms: The Charter of Rights and Freedoms
A superb multimedia educational resource about Canada's Charter of Rights and Freedoms. Explore the interactive Virtual Charter section for an up-close view of each section of the Charter, the Canadian Constitution, and the British North America Act. Also features interviews with Canadians talking about the Charter, comprehensive teacher guides that focus on related historical and legal issues, information about the television documentary “Fundamental Freedoms,” and much more.
The myth of the long knives
A Globe & Mail article about Canadian federal and provincial political leaders who were responsible for working out the terms of Canada's Constitution.