Constitution Act, 1982
The Constitution Act, 1982 enshrined the Charter of Rights and Freedoms in the constitution, and completed the unfinished business of Canadian independence – allowing Canadians to amend their own constitution without requiring approval from Britain.
The Constitution Act, 1982 was a landmark in Canadian history. It enshrined the Charter of Rights and Freedoms in the constitution, the highest law of the land, and completed the unfinished business of Canadian independence – allowing Canadians to amend their own constitution without requiring approval from Britain.
At the time of Confederation, Canada’s constitution consisted of several acts of the British Parliament in London – most importantly, the British North America (BNA) Act, 1867 – and a series of British constitutional conventions (widely accepted, unwritten rules). Only London had the authority to amend the BNA Act.
With the Statute of Westminster in 1931, the British were willing to grant full autonomy to the self-governing parts of their empire, including Canada. But Canadians were left with a dilemma: If Canada accepted the transfer of constitutional power from Britain, and was free to amend its own constitution, how would this be done? Should the federal government be allowed to amend the constitution unilaterally or was provincial consent required? Did all the provinces need to agree to an amendment or just a majority? Should all provinces be counted equally or should larger provinces have more say than smaller ones? And should Québec have a veto that it would allow the province to protect the interests of the minority French Canadians? Until Canadians could settle these questions, the British Parliament retained the authority to amend Canada’s constitution.
Generations of Canadian politicians had grappled unsuccessfully with the problem of constitutional change. Since the 1930s, a series of federal-provincial conferences had ended in failure when the prime minister and premiers could not agree on how Canada’s constitution should be amended.
Trudeau and the Premiers
The turning point came with the May 1980 Québec referendum on sovereignty. The federal government under Pierre Trudeau promised Québecers during the campaign that Ottawa would re-open constitutional negotiations[RT2] . When the separatists were defeated, Trudeau immediately began a process to create a charter of rights and an amending formula for the constitution.
Facing opposition from eight of the 10 provincial governments (all but Ontario and New Brunswick), Trudeau announced that he would proceed alone and would ask the British to amend the BNA Act according to a resolution from the Parliament in Ottawa.
Opposition leader Joe Clark held up the resolution in the House of Commons, while the provincial premiers took Trudeau’s government to court on the matter. In September 1981, the Supreme Court of Canada issued a confused ruling: legally, Trudeau could proceed with a resolution of the Senate and the House of Commons, but there was a constitutional convention that Ottawa should seek substantial provincial support before asking Britain for amendments.
Trudeau returned to the bargaining table one last time. In November 1981, the federal government and nine of the 10 provincial governments (all but Québec) reached an agreement on sending a proposal to London. The new "repatriated" Constitution would now include a complicated formula for future amendments. It would also include a charter of rights that – despite being enshrined in the constitution – contained clauses that could be overridden for short periods by the federal Parliament or the provincial legislatures. Britain approved the deal, which came into force on 17 April 1982. (See also Patriation of the Constitution.)
What the Act Says
The Act consists of seven parts.
The first is the Canadian Charter of Rights and Freedoms, which prevents the federal, provincial and territorial governments from infringing on Canadian rights and freedoms. Under the notwithstanding clause, the federal Parliament or the provincial legislatures can exempt any law from certain Charter provisions for [RT3] a period of five years.
The second part guarantees the existing rights of the Aboriginal peoples of Canada, though these are left undefined.
The third part recognizes the federal government’s practice since the 1950s of providing equalization payments to poorer provinces to reduce disparities in services from one province to another.
The fifth part contains the procedure for amending the constitution. Most sections of the constitution can be amended upon approval from the Senate, the House of Commons and the legislatures of at least two-thirds of the provinces (seven provinces), so long as those provinces contain at least 50 per cent of the population of all the provinces. This is known as the 7/50 rule.
Unanimity of the Senate, the House of Commons and all 10 provincial legislatures is required to amend provisions that deal with the composition of the Supreme Court of Canada, the use of the French and English languages, the right of a province to have at least as many members of Parliament as senators, or the offices of the Queen, the governor general, or the lieutenant-governors.
The amending formula does not specifically mention abolition of the Senate. In 2014, however, the Supreme Court ruled – in answer to a constitutional question from the federal government – that changing the makeup of the Senate (in this case, limiting the terms of senators to nine years) would require an amendment under the 7/50 rule. The court also said that abolishing the Senate would require the unanimous consent of Parliament and all 10 provinces.
Amendments that deal with some but not all of the provinces (for example, changing the boundary between two provinces) may be made by the Senate, the House of Commons and the relevant provinces. An amendment can proceed without Senate approval if the House of Commons approves the amendment and then does so again at least 180 days later.
The sixth part amends the BNA Act of 1867 to specify that the provincial legislatures have exclusive jurisdiction over non-renewable natural resources.
The seventh part contains several minor, miscellaneous provisions.
The Québec government under Premier René Lévesque protested bitterly that Ottawa and nine of the provinces had proceeded without Québec. Nationalists in the province spoke dramatically of “the night of the long knives,” when Québec, they claimed, had been betrayed by Trudeau and the other premiers.
When Brian Mulroney became prime minister in 1984, he was determined to amend the constitution to make it acceptable to the government of Québec, which was led after 1985 by a federalist Liberal, Robert Bourassa. In 1987, Mulroney and all the premiers settled on a series of amendments in the Meech Lake Accord, but the agreement collapsed three years later when the legislatures of Manitoba and Newfoundland failed to ratify it.
A subsequent agreement, the Charlottetown Accord of 1992, also failed, this time after being defeated in a national referendum. Québec nationalists again claimed that their province had been humiliated, and this sentiment fuelled the growth of the Bloc Québécois, a new separatist party in Parliament.
Resentment over the events of 1981-1982 still lingers among some Québec nationalists. However, Québec’s place in the constitution is no longer at the forefront of Canadian public debate. Public opinion surveys show widespread support in every province for the Charter of Rights and Freedoms.
Hamish Stewart, Fundamental Justice (2012).Ron Graham, The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada (2011); Hon. Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed. (2009); Peter W. Hogg, Constitutional Law of Canada, 5th ed. (2007); Patrick J. Monahan, Constitutional Law, 3d ed. (2006).