Bringing It Home: Patriation and the Charter, 1980–1982

Bringing it home

Until 1982, Canada had an odd problem. Its constitution, the British North America Act, 1867, was a law passed by the British Parliament. Canada had been independent in practice since the Statute of Westminster (1931), but Canadian governments could not agree on a way to change their own constitution, so major amendments still had to be passed in London.

Prime ministers had tried to fix this for decades. A 1964 proposal failed, and the Victoria Charter of 1971 failed when Quebec Premier Robert Bourassa rejected it. On April 17, 1982, it finally happened: Queen Elizabeth II signed the proclamation of the Constitution Act, 1982 in Ottawa. Canada had patriated its constitution (brought it home), with a new Charter of Rights and Freedoms and a way to amend it in Canada.

But one province did not sign. In this lesson you will find out how patriation happened, who won and lost, and why it is still debated.

Why 1980?

During the 1980 Quebec referendum, Prime Minister Pierre Trudeau promised Quebecers that a No vote would lead to renewed federalism. After the No side won, he moved quickly. When talks with the premiers failed in the summer of 1980, Trudeau announced in October 1980 that Ottawa would ask Britain to patriate the constitution without provincial agreement, adding a Charter of Rights and an amending formula.

Eight provinces opposed this plan; only Ontario and New Brunswick supported it. The eight, called the "Gang of Eight", included Quebec. They took the question to court.

The Supreme Court decides (September 1981)

In the Patriation Reference of September 28, 1981, the Supreme Court of Canada ruled that:

1. Trudeau's plan was legal: no law required the provinces' consent.
2. But it broke a constitutional convention (an unwritten rule that political leaders are expected to follow): a substantial degree of provincial consent was needed for changes that affected provincial powers.

The ruling pushed both sides back to the table.

The Kitchen Accord (November 1981)

In early November 1981, Trudeau and the ten premiers met in Ottawa. On the night of November 4–5, federal Justice Minister Jean Chrétien, Ontario's attorney general Roy McMurtry and Saskatchewan's attorney general Roy Romanow worked out a compromise in a small kitchen in the conference centre. Overnight, the premiers of most of the other provinces agreed to it. René Lévesque, staying across the river in Hull, was not part of the overnight talks. In the morning he learned that nine provinces and Ottawa had a deal.

The compromise included:

• The Charter of Rights and Freedoms, which Trudeau wanted.
• A notwithstanding clause (section 33), which the premiers wanted: Parliament or a provincial legislature can declare that a law will operate notwithstanding (despite) certain Charter rights, for five years at a time (renewable).
• An amending formula that most provinces preferred: most changes need Parliament plus seven provinces with at least 50 percent of the population.

In Quebec, many people call that night la nuit des longs couteaux ("the night of the long knives"), because they feel Quebec was betrayed and isolated. Quebec's National Assembly voted to reject the agreement. In December 1982, the Supreme Court ruled that Quebec did not have a veto over constitutional change.

Women and Indigenous peoples shape the Charter

Citizens' groups lobbied hard to shape the new constitution:

• Women's groups: after a government advisory council cancelled a conference on women and the constitution, Doris Anderson resigned as its president in protest, and women organized their own Ad Hoc Conference in Ottawa in February 1981. Their lobbying helped win section 28, which guarantees Charter rights equally to male and female persons. When the November deal appeared to let governments override section 28, women's groups lobbied premiers one by one until the override was removed.
• First Nations, Inuit and Métis: as you saw in the previous lesson, their protests restored the recognition of existing aboriginal and treaty rights in section 35, after it was dropped in November 1981.
• People with disabilities lobbied successfully to have disability included in the equality rights section (section 15).

What the Charter does

The Canadian Charter of Rights and Freedoms limits what governments can do (it does not apply directly to private businesses or individuals; human rights codes cover those). It protects:

• fundamental freedoms such as religion, expression, peaceful assembly and association (section 2);
• democratic rights (to vote and run for office), mobility rights and legal rights (for example, to a fair trial and against unreasonable search);
• equality rights (section 15), which took effect in 1985 to give governments time to change their laws;
• official language rights and minority language education rights (section 23), so English- and French-speaking minorities can have their children educated in their language where numbers warrant.

Section 1 says rights are subject to reasonable limits that can be justified in a free and democratic society. Courts now decide whether laws respect the Charter, which gave judges a much bigger role in Canadian life.