Patriation

Patriation is a colloquial term used in Canada to describe the process leading to a specific constitutional change in 1982. Until that date, Canada was governed by a constitution comprised of British laws that could be changed only by an acts of the British parliament, albeit only with the consent of the Canadian government. Patriation resulted in the constitution being amendable by Canada only and according to the Canadian amending formula, with no role for the Parliament of the United Kingdom. Hence, patriation is associated with the acquisition of full sovereignty.

The word "patriation" was invented in Canada as a back-formation from "repatriation" (returning to one's country). As the Canadian constitution was originally a British law, it could not "return to" Canada. The term was first used in 1966 by Prime Minister Lester B. Pearson in response to a question in parliament: "We intend to do everything we can to have the constitution of Canada repatriated, or patriated."

Early attempts

From 1867, the Constitution of Canada was primarily contained in the British North America Act, 1867, and other British North America Acts, which were passed by the Parliament of the United Kingdom. Several Canadian prime ministers, starting with William Lyon Mackenzie King in 1927, had made attempts to domesticize the amending formula, but could not obtain agreement with the provincial governments as to how such a formula would work. Thus, even after the Statute of Westminster granted Canada and other Commonwealth nations full legislative independence in 1931, Canada requested that the British North America Act, 1867, be excluded from the laws that were now within Canada's complete control to amend; until 1949, the constitution could only be changed by a further act at Westminster. The British North America (No.2) Act, 1949, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction, without involvement of the United Kingdom. The constitution was amended in this manner five times: in 1952, 1965, 1974, and twice in 1975.

This, however, did not stop continued negotiations between federal and provincial governments on the development of a new amending formula in which the United Kingdom would have no part. In the 1960s, efforts by the governments of Prime Ministers John Diefenbaker and Lester Pearson, including the Confederation of Tomorrow conference in Canada's centennial year, culminated in the Fulton–Favreau formula, but without Quebec's endorsement, the patriation attempt failed. In 1968, Pearson was succeeded by Pierre Trudeau, who also advocated patriation. He made several attempts, including the Victoria Charter in 1971 and more proposed amendments in 1978.

Patriation achieved

Pierre Trudeau (L) and Jean Chrétien (R) at one session of the 1981 Constitutional talks.

Patriation was given a new impetus after the 1980 Quebec referendum, in which Trudeau promised a new constitutional agreement if the province voted "No" to sovereignty-association. Trudeau found new allies in Premiers Bill Davis (Ontario) and Richard Hatfield (New Brunswick). However, there was disagreement over Trudeau's proposed Charter of Rights, which the other eight provinces opposed as encroachments on their power. The eight provinces were Quebec, Nova Scotia, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, and Newfoundland.

Soon the other eight premiers came to an agreement, and submitted their own plan for a constitution, without a Charter of Rights and with an "opt out" clause for federal programs with equivalent funding given to the province(s). They would be dubbed the "Gang of Eight" by the media. Surprisingly included among them was René Lévesque, because it meant Lévesque was refusing the traditional Quebec demand for a veto power over future constitutional amendments. Lévesque was not trusted by many in the group until he signed the document, and many of the "Gang's" later problems would be attributed to the fact that Lévesque thought the agreement was a final one when he signed it, not a starting point for negotiations as the other premiers understood it.

Trudeau rejected the proposed document out of hand, and then threatened to take the case for patriation straight to the British parliament "[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown—in council, parliament, and on the bench—was to exercise its residual sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. The Gang soon appealed to the courts. Justice Joseph O'Sullivan of the Manitoba Court of Appeal found that the federal government's position was incorrect; the constitutionally entrenched principle of responsible government meant that the Queen, as either Queen of Canada or of the United Kingdom, could not legislate for the provinces (i.e. alter their constitutions) only on the advice of her Canadian federal ministers; "Canada had not one responsible government but eleven." But the judges across the country were not unanimous in their conclusions on the matter. Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed. Still, the case went to the Supreme Court of Canada.

The Patriation Reference

Main article: Patriation Reference

The court ruled (for the first time, on live television) that the federal government had the right, by letter of the law, to proceed with the unilateral patriation of the constitution (the decision seven to two in favour). However, by a different six-to-three majority, the court said that the constitution was made up as much of convention as written law and ruled that a unilateral patriation was not in accordance with constitutional convention. Although the courts enforce laws, not constitutional conventions, the message was clear: agreement by a "substantial" number of premiers would be required. This number was not defined and commentators later criticised the court's failure to rule that the approval of all provinces was required.

The decision was controversial and a loss for the Gang. Lévesque would later remark: "In other words, Trudeau's goals might be unconstitutional, illegitimate, and even 'go against the principles of federalism,' but they were legal!" Trudeau, in his memoirs, paraphrased the court as saying "that patriation was legal, but not nice."

The Conference

The decision set the stage for a meeting amongst all premiers and Trudeau in Ottawa, in November 1981. After two days of meetings came to a stalemate, Trudeau pitched an idea to Lévesque: to patriate the constitution as it was, but continue debates for two years and maybe even have a national referendum on certain issues. Lévesque, feeling threatened that he would be cast as "undemocratic" (especially after the recent referendum he initiated on Quebec's independence) agreed with Trudeau on the issue. Their respective memoirs have very different stories on the conversation.

The other seven opposition premiers were startled: Canadians nationwide were mostly in agreement with Trudeau on the issue and were tired of the constant constitutional talks. A referendum would surely give him what he wanted with the backing of the majority of the voting populace, undermining provincial powers. Even though Lévesque would later back off of the referendum proposal, saying it looked as though it was "written in Chinese," Trudeau had succeeded in breaking up the Gang of Eight. Lévesque went to sleep in Hull, Quebec, for the night.

The Kitchen Accord

That night—November 4, 1981—the Minister of Justice, Jean Chrétien, met with Attorney General of Saskatchewan Roy Romanow and Attorney General of Ontario Roy McMurtry in the kitchen of Ottawa's Government Conference Centre. The premiers agreed to get rid of the "opt out" clause, while Chrétien reluctantly offered to include the Notwithstanding Clause in the constitution. Hatfield and Davis agreed to the compromise and told Trudeau that he should take the deal. Trudeau accepted what would be called the Kitchen Accord. The men at the table that night became known as the Kitchen Cabinet.

However, former Newfoundland premier Brian Peckford, one of the premiers present at the federal-provincial conference and the November 4 evening meeting, rebuked in an article in The Globe and Mail the events of that night as anything that resembled "The Kitchen Accord" or "Night of the Long Knives". He said four premiers, from Newfoundland, Saskatchewan, Prince Edward Island, and Nova Scotia, and senior representatives from Alberta and British Columbia, worked from a proposal that the Newfoundland delegations brought to the meeting. Efforts were made to reach the other provinces, including Quebec, to no avail. Peckford further asserted that Chrétien was not contacted and he had no knowledge of the "so-called kitchen meetings". The proposal agreed upon that night was essentially the same as the Newfoundland’s proposal except some minor word changes and adding a new section, and the final draft was to go to all the provinces for approval the following morning.

As they were all in Quebec, Lévesque and his people remained ignorant of the agreement until Lévesque walked into the premiers' breakfast and was told the agreement had been reached. Lévesque refused to give his support to the deal and left the meeting; the government of Quebec subsequently announced on November 25, 1981, that it would veto the decision. However, both the Quebec Court of Appeal and the Supreme Court, which issued its ruling on the matter on December 6, 1982, stated that Quebec had never held such veto powers.

The events were very divisive. Quebec nationalists saw the deal as the English-speaking premiers betraying Quebec, which prompted use of the term Night of the Long Knives. In English Canada, Lévesque was seen as having tried to do the same to the English-speaking premiers by accepting the referendum. Among those was Brian Mulroney, who said that by "accepting Mr. Trudeau's referendum idea, Mr. Levesque himself abandoned, without notice, his colleagues of the common front." Jean Chrétien's role in the negotiations made him reviled among sovereigntists. Until the Quebec Liberals came to power in 1985, every law passed in Quebec used the Notwithstanding Clause.

Legal closure

With the agreement of the majority of provincial governments, the Canada Act 1982 was also formally approved by the governments of the United Kingdom and Canada. In a joint address in the Canadian parliament, Queen Elizabeth II was asked to amend the constitution and she, as Queen of the United Kingdom, granted Royal Assent to the Canada Act on March 29, 1982, 115 years to the day since Queen Victoria gave assent to the British North America Act 1867. The Canada Act contained the Constitution Act, 1982, which itself included an amending formula involving only Canadian governments. Section 2 of the Canada Act, meanwhile, plainly states that no subsequent UK law "shall extend to Canada as part of its law", while item 17 of its schedule also amends the Statute of Westminster removing the "request and consent" provision.

Elizabeth II then, as Queen of Canada, proclaimed the patriated constitution in Ottawa on April 17, 1982. On the royal proclamation parchment were spaces for the signatures of the Queen, Trudeau, and the Registrar General of Canada; at the signing ceremony, however, Trudeau offered Chrétien an opportunity to also place his name on the document. The pen's nib had, by that point, been broken, leading Chrétien to utter under his breath "merde!" (French for "shit"), which the Queen overheard and laughed at. The broken pen caused a smudge at the end of Chrétien's signature. The desk upon which the proclamation was signed (known as the Constitution Table) resides in the office of the Speaker of the Senate of Canada.

Paul Martin, Sr., who was in 1981 sent, along with John Roberts and Mark MacGuigan, to the UK to discuss the patriation project, noted that, during that time, the Queen had taken a great interest in the constitutional debate and the three found the monarch "better informed on both the substance and politics of Canada's constitutional case than any of the British politicians or bureaucrats." Trudeau commented in his memoirs: "I always said it was thanks to three women that we were eventually able to reform our Constitution[, including] The Queen, who was favourable... I was always impressed not only by the grace she displayed in public at all times, but by the wisdom she showed in private conversation."

Being aware that this was the first time in Canadian history that a major constitutional change had been made without the Quebec government's agreement and Quebec's exclusion from the patriation agreement had caused a rift, the Queen privately conveyed to journalists her regret that the province was not part of the settlement. She later publicly expressed on 22 and 23 October 1987 her personal support for the Meech Lake Accord, which attempted to bring Quebec governmental backing to the patriated constitution by introducing further amendments, and she received criticism from opponents of the accord, which failed to attract the unanimous support from all federal and provincial legislators required for it to pass. Quebec sovereigntists have, since 1982, demanded that the Queen or another member of the Canadian Royal Family apologize for the enactment of the Constitution Act, 1982, calling the event a part of a "cultural genocide of francophones in North America over the last 400 years."

Legal questions

As constitutional scholar Robin White has noted, some might think that, since the Canada Act 1982 is British as well as Canadian law, the United Kingdom could theoretically repeal it and declare its laws to be binding in Canada. Peter Hogg, however, disputes this view, noting that since Canada is now sovereign, the Supreme Court of Canada would find a British law supposedly binding in Canada to be just as invalid in Canada "as a law enacted for Canada by Portugal." Paul Romney argued in 1999 that, regardless of what the British authorities did, the constitutional principle of responsible government in Canada denied them the right to ever again legislate for Canada; he stated: "[T]he constitutional convention known as responsible government entailed legal as well as political sovereignty. Responsible government meant that the Queen of Canada could constitutionally act for Canada only on the advice of her Canadian ministers. If the British parliament were to legislate for Canada except at the request of the competent Canadian authorities, and the Queen assented to that legislation on the advice of her British ministers, Canadian courts would refuse to enforce that legislation."

External links

The dictionary definition of patriation at Wiktionary

• The Road to Patriation
• Canadian Encyclopedia?: Patriation of the Constitution