Should a government fail to respect natural rights, wrote Locke and Rousseau, then disobedience and rebellion were justified. Thus was born the modern notion of human rights. So responsive was this notion that the greatest social revolutions in the history of the western world took place – one in America and the other in France – in order to preserve for individuals the rights which they claimed belonged to them.– Pierre Elliot Trudeau, Minister of Justice, from A Canadian Charter of Human Rights, Canadian Government, 1968
On April 17, 1982, Canada reached a milestone, the most significant in our constitutional and legal history since Confederation itself. The date marked the coming into force of a hard-won agreement between the federal government and all provinces save Quebec. This high degree of consensus was a truly remarkable achievement which enabled our long-suffering nation (on the constitutional front) to at long last patriate our Constitution and, at the same time, enshrine protection of fundamental rights and freedoms. Canada has given the world a new word – patriation – to describe the process of reaching an agreement between governments on how to assert control over our own constitution and finally end the pivotal role played by the British Parliament. Political and legal drama of a kind rarely experienced in Canadian history, beginning in 1980, led to the breakthrough agreement in November of 1981, composed primarily of the following elements:
- a Charter of Rights and Freedoms;
- protection of Aboriginal and treaty rights;
- protection of language rights;
- a formula for amending the Constitution in the future; and
- protection of provincial natural resources.
As a lawyer who has practiced for many years and is a student of our history, I can say without hesitation that the creation of the Constitution Act, 1982 marked genuine progress in our legal and political systems and can be compared with any of the other major developments in the postwar era. As a young barrister appearing before our courts before the Charter of Rights came into force, I can attest to the numerous ways that the introduction of protection of basic rights for citizens has improved our system of justice. In the field of criminal law, for instance, rights such as the right to counsel or to proper advance disclosure of the Crown’s case against an accused now receive protection, leading to fairer trials and more just results. The number of wrongful convictions has surely been reduced since the introduction of the Charter.
Currently I review and analyze proposed and existing laws and regulations in relation to the Charter and to s.35, the aboriginal and treaty rights clause and can readily perceive the ways in which our new Constitution encourages governments and officials to legislate and to act in ways that are fairer and less likely to discriminate. So, in this article I wish to salute the creation of the Constitution Act, 1982 as part of the celebrations marking the 30th anniversary of its existence. I was proud and excited to attend a celebration at the University of Alberta in which participants in some of the first Charter cases from Alberta to appear before the Supreme Court of Canada relived the heady days of early litigation in the new era. Charter and Aboriginal litigation then, as now, allows Canadians to observe the interplay of competing rights and interests as we seek to realize our fundamental values in real-life contexts. The Charter dialogue spoken about in law review articles is not limited to a dialogue between the courts and the legislatures, but exists in similar and distinct ways between lawyers and judges and between citizens as well as organizations.
I also attended a remarkable conference in late 2011 put on by the Centre for Constitutional Studies, University of Alberta, which took place in the Fairmont Hotel Macdonald. We met in rooms that were minutes away from one of the rare copies of the portrait of the Fathers of Confederation, painted shortly after a much earlier momentous agreement was forged. The event was the Patriation Negotiations Conference and featured presentations by many of the key participants in the 1980-81 process who are still living. One wonders if they will ever be assembled together again. I must say that in light of these welcome opportunities to celebrate patriation, and particularly the Charter of Rights and the Aboriginal rights provisions, it is disappointing that the federal government apparently chose not to celebrate the occasion with an event of its own in 2012.
The Background – Early Attempts to Find a Suitable Amending Formula and Bring our Constitution Home
The British North America Act, 1867, which came into force at Confederation, was a British statute and confirmed Canada’s attachment to the Mother Country even while becoming a mostly independent nation. The Preamble to the Act, (now called the Constitution Act, 1867) speaks not only of the four former colonies wishing to be united into one Dominion, and specifies that our Constitution will be similar in principle to that of the United Kingdom. However, it failed to specify amendment procedures. It also did not specify fundamental rights and freedoms to be protected from actions taken by the exercise of their powers by the federal or provincial governments.
In a federal system, there are two levels of government, each with distinct powers set out in the Constitution. However, the language employed in the British North America Act did not supply an undisputed answer to the question of which government exercised power over a given subject matter. The BNA Act quickly became a hotly contested ground of contention between the federal and provincial governments. As the decades wore on, the struggle between governments over the division of powers also eventually extended to competing positions on what would be required for the federal government to make a proper request to the British Parliament, the ultimate custodian of the Act. It remained the only entity that could enact legislation to alter the Constitution. Even before serious disputes arose, it was apparent that there were several reasons why Canada should bring its Constitution home and assert full control over it. It was clear that the federal and provincial governments, prone to squabbling in all manner of constitutional matters, would have to reach agreement on the formula for making future amendments to the Constitution itself.
The patriation process of 1980-81 was the latest in a long line of seemingly endless federal-provincial conferences aimed at breaking the constitutional gridlock. Given the lack of rules on how to amend our existing constitution, it was unclear whether the government under Prime Minister Pierre Trudeau would be able to act unilaterally to patriate the constitution, or whether it would need the consent of the majority of the provinces, or perhaps even all of the provinces. This high degree of uncertainty acted as a wild card as negotiations unfolded.
The national government seems to have first perceived the need to resolve the constitutional issue in the years following the First World War. Canada’s immense contribution to the effort led to an awareness that Canadians and their political representatives deserved a constitution in the control of the country itself. The sacrifice of Canadians at Vimy, Pasaschendaele and elsewhere led to calls that Canada become a fully sovereign nation. However, while other nations within the Empire like South Africa, New Zealand and Australia accomplished the goal of securing control over their own constitutions in 1926, Mackenzie King’s government had to report back to Britain, while eating a fair degree of humble pie, that Canada could not agree on a formula for amending its own Constitution. The Mother Country would rather embarrassingly remain the custodian of our supreme law. This continued at numerous federal-provincial conferences for decades. Even when a basic agreement, called the Victoria Charter, was reached in 1971, Quebec exercised a veto power and refused to ratify it. Frustrated Prime Minister Lester Pearson and his Minister of Justice, Pierre Trudeau, were forced to let the matter languish in uncertainty.
If the issue of bringing home our Constitution had been limited to finding a satisfactory compromise on future amendments, the lack of excitement coupled with the high probability of failure would have convinced most Prime Ministers and the majority of the population to let that particular sleeping dog lie, at least until a new dynamic could be created. Indeed, although few in the 1970s would have dreamed it possible, the determined zeal of Prime Minister Trudeau and his federal team in the aftermath of the Quebec Referendum of 1980 created the momentum that finally proved to be the successful ice breaker.
To understand the passion that drove the Prime Minister over the 1980-81 period, we must understand that he and a number of other scholars and human rights advocates had begun in the postwar period to link achieving sovereignty through patriation with the need for a charter of rights to place freedoms and rights on a solid foundation. Frank Scott wrote eloquently of this dream, which came to embody an important aspect of the progressive vision in Canadian politics. Scott acted as an indispensable intellectual guide to Pierre Trudeau at McGill University in Montreal in the 1950s and beyond. Indeed, it was almost certain that an important raison d’être for Pierre Trudeau’s move away from academia to the hurly burly world of politics was his drive to implement constitutional reform and entrench protection of fundamental rights in the Constitution. Accordingly, he came to Ottawa along with his friends Gerard Pelletier and Jean Marchand (dubbed the “Three Wise Men”) as fresh and powerful voices. Trudeau became Minister of Justice and advocated for a charter of rights almost immediately, building on the work of a few progressive politicians across Canada. One, Tommy Douglas, the long-time CCF Premier of Saskatchewan, had recommended at federal-provincial conferences in the 1950s that Canada move to give full constitutional protection for rights. He offered the prescient advice that with such an approach, federal and provincial leaders would have greater political capital to tackle the difficult task of agreeing on an amending formula.
Progressive Conservative leader John Diefenbaker became another strong advocate for rights protection in the 1950s. Having witnessed the jaw-dropping violations of fundamental rights in the aftermath of the Gouzenko espionage affair, his concerns culminated with the Canadian Bill of Rights, enacted during his term as Prime Minister. It offered quite limited protection in comparison with constitutional protection but, in retrospect, can be viewed as a stepping stone to the creation of the Canadian Charter of Rights and Freedoms.
The stage was thus set for Prime Minister Trudeau to seize the initiative and develop a “People’s Package” which would include a charter of rights and minority linguistic rights. When various provincial premiers developed a defensive alliance, dubbed “The Gang of Eight,” he resolved to push forward with a referendum on his proposed constitutional package, which would hold out the electrifying possibility of politicians pitching their competing visions of our fundamental values and laws to the entire country.
To understand the many political and legal actors who participated in the high-stakes constitutional negotiations, I recommend Ron Grahams’ fine 2011 account of the final patriation round, The Last Act: Pierre Trudeau, The Gang of Eight and the Fight For Canada. Graham draws on extensive interviews with key participants and archival research to help readers better understand this momentous event. He provides insight into the manner in which Jean Chrètien, federal Minister of Justice and the Prime Minister’s lieutenant on the constitutional team, translated his affable style in closed door meetings with his provincial counterparts to develop a measure of trust and cooperation. The tough-talking but unpretentious Chrètien described his efforts during this period as those of a fullback on the federal team. Trudeau, as quarterback, handed the ball to him time and again to issue strong statements, but also to sound out his counterparts on their requirements for the making of a deal.
Supreme Court of Canada Decision on Patriation
Given provincial resistance to the bold federal plan, various provinces initiated references to their Courts of Appeal to determine if Ottawa could proceed unilaterally in the absence of agreement. The federal government countered with its own reference to the Supreme Court of Canada. It ruled in 1981 that, while Parliament had the legal authority to request that Britain amend the BNA Act and hand future control over to Canada, it was an unwritten convention that the federal government should seek a “substantial degree” of provincial consent before doing so. Both sides – Mr. Chrètien for the federal forces and various representatives for the holdout provinces – claimed victory. But once the dust cleared, two key consequences emerged. First, Prime Minister Trudeau agreed that in light of the judgment his government would make one final attempt to resolve the matter through negotiations. Second, it was now clear that convention did not require unanimous consent for provinces – a province like Quebec no longer could claim that it held a veto power. The Court’s judgment assisted with the realization on both sides that an attempt at a negotiated settlement was preferable to hard-line positions.
Negotiation of a Deal for the Nation
A highly dramatic three days of meetings on patriation took place in November, 1981 at, ironically enough, Union Station, the converted railway station used as a conference centre in Ottawa. The first two days of meetings provided no breakthrough and many participants thought the final day would end in failure. The evening of November 5, 1981 began the process of reaching an accommodation of key provincial requirements with the creation of the “Kitchen Accord”, which is now part of constitutional lore. Chrètien and his good friends, the Attorney General of Saskatchewan, Roy Romanow, and the Attorney General of Ontario, Roy McMurtry, provided the framework of a deal by beginning with a careful summary of the main elements of the federal plan and establishing points where compromise might be possible. Of course, there remained a critical role for individual premiers and federal negotiators to play in forging an actual agreement but the Kitchen Accord was the spark that lit the flame. The agreement that was reached early the following day was signed on to by the federal government and nine provinces. Rene Levesque’s negotiating team was presented with the deal as a virtual fait accompli that morning, having gone to bed the previous evening believing the conference was doomed to failure. It was discourteous to have left the Quebec contingent on the sidelines while a deal was being forged, but the others were well aware of the position staked out by Quebec and probably felt that it was unlikely it would see the new development in a positive light. Certainly, the perception that Quebec was intentionally left out at such a critical juncture has led to bitterness and unwillingness to embrace the patriated Constitution. The night has been commemorated in Quebec historical lore as “the Night of the Long Knives.”
In any event, with movement on a few key points, the other participants reached an agreement. Perhaps the greatest concession was made by the federal side, in accepting the insertion of a notwithstanding clause in the Charter of Rights. (When utilized, this clause means that laws may operate without being subject to the Charter.) Although a purist who favours rights might blanche at the existence of the clause, which was limited to a five-year term, in reality it has rarely been used. The exception was the province of Quebec. After the initial five-year period, however, Quebec ceased to use that clause and enacted legislation in a manner fully subject to the national Charter of Rights.
Other changes were made to accommodate the two sides and what resulted was a constitution which I believe many Canadians properly look upon as a major advancement in our political and legal systems. With the coming into force of the Constitution Act, 1982 we became a mature liberal democracy with much greater rights protection for vulnerable minorities and all citizens. The November deal was improved in a number of ways by citizen participation both before and after. For instance, the aboriginal rights protection advocated by the federal government had not been acceptable to many provinces at the patriation conference. Nonetheless, pressure from aboriginal organizations and their supporters led to its reinstatement and so, s. 35 now recognizes and affirms existing aboriginal and treaty rights. The Constitution Act has indeed proved to be a genuine “people’s package” and has become a model for other nations in their quest for constitutional reform. The Charter of Rights has continuously garnered high levels of support from Canadians. A sophisticated and relatively balanced body of jurisprudence has developed over the various parts of the new Constitution which surely refutes the more alarmist criticisms that were raised in 1981. We can all claim to have a vested interest in “our constitution.”