Patriation of the Constitution

Trudeau’s Referendum Campaign Promise

Since the 1920s, Canadian governments had been trying and failing to agree on a way to patriate (take back from Britain) and amend (change) the country’s original Constitution (the British North America Act). Six decades later, constitutional reform became one of several major Liberal initiatives. It was also the federal government’s immediate response to the ongoing Quebec referendum campaign.

Two key factors predated the patriation battle of 1980–81. First, the failings of a half-century of diplomacy between the federal and provincial governments made negotiations between them tense and difficult. (See also Federal-Provincial Relations.) Second, the unexpected victory by Pierre Trudeau and the Liberal Party in the federal election of February 1980 ensured that a committed federalist would be leading the charge on patriating the country’s constitution.

In the campaign leading up to the Quebec referendum on 20 May 1980, Trudeau’s Justice Minister, Jean Chrétien, lobbied against the wishes of Quebec separatists. He made campaign stops in small towns across the province. Meanwhile, Trudeau gave four major speeches, promising Quebecers that, “We will immediately take action to renew the Constitution and we will not stop until we have done that.” His statements were vague enough to defy definition, yet inspiring enough to help swing the tide in favour of federalism.

After conceding defeat in the referendum, Quebec Premier René Lévesque immediately demanded that Trudeau fulfil his constitutional promise. Trudeau quickly dispatched Chrétien to arrange a meeting with all the premiers.

Charter of Rights

At this point, it was unclear how much provincial support Trudeau needed to patriate and amend the Constitution. Legally, any change required the approval of the British Parliament. By political custom and convention, however, the more the provincial governments supported the federal patriation process, the better.

Trudeau assembled a group of constitutional advisers. He also drafted a set of federal demands for new, centralized powers over the economy. He wanted what he called a “people’s package” added to the Constitution; it would include a new Charter of Rights and Freedoms. Trudeau also called on the premiers not to use the constitutional talks to bargain for new provincial powers; he said the talks and the Charter itself were not matters for tawdry political trade-offs.

The premiers, however, wanted to preserve or even expand provincial powers. (See Distribution of Powers.) They responded angrily to Trudeau’s tactics. Still, they agreed to set in motion a uniquely Canadian event — a summer constitutional roadshow. A series of meetings were held across Canada between Cabinet ministers, senior officials and political aides. They explored the 12 agreed-upon agenda items. A formal First Ministers’ conference was then held in early September.

Trudeau’s Ultimatum

The First Ministers conference began on 8 September 1980. It was the 10th round of negotiations on the reform of Canada’s Constitution since 1927. By the time it started, the battle lines had already begun to harden. On the eve of the conference, Lévesque quietly gave the premiers a leaked copy of Ottawa’s 64-page, top-secret negotiating strategy. It was 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. This further soured an already bitter mood of distrust.

During four days under hot television lights, the premiers and the prime minister expressed (at times impressively) widely different visions of Canada. These were also discussed in private meetings. However, their intractable views led to the inevitable failure of the conference. On 2 October, following consultations with his caucus and Cabinet, Trudeau announced, to little surprise, that Ottawa would make a unilateral request to the British Parliament. Trudeau would recall Parliament early and press the resolution through by Christmas before significant opposition could be mounted.

The New Democratic Party, under leader Ed Broadbent, gave tentative approval to the plan, though it split his caucus essentially along east-west lines. The federal Conservatives, under leader Joe Clark, strongly opposed the plan. They used every procedural device at their disposal to halt the resolution; it finally went before the Supreme Court in late spring 1981. When the Liberals invoked “closure” on the resolution to move it into the committee stage in Parliament, 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 rally his flagging leadership. It also gave him the chance 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 Bill Davis and New Brunswick Premier Richard Hatfield, both Conservatives, backed the prime minister’s plan.

Gang of Eight

The constitutional resolution, with the new Charter of Rights and Freedoms as its centerpiece, was offered to a special joint parliamentary committee for study. It was harshly criticized. The first parliamentary committee to have its sittings televised, it was petitioned by 914 individuals and 294 groups. It sat for more than 65 days. Largely because of its deliberations, the first Charter was significantly redrafted five times. The revisions included adding provisions on Indigenous peoples’ rights; sexual equality; and equal rights for the disabled. The Conservative Party called for the addition of property rights. The Liberals rejected this proposal because of the opposition to it by their allies, the NDP.

The six provinces most strongly opposed to the plan — Quebec, Alberta, Manitoba, Prince Edward Island, Newfoundland and British Columbia — united to form a common front. The group was led by the strong-willed premiers of Quebec (René Lévesque), Alberta (Peter Lougheed) and Manitoba (Sterling Lyon). The group eventually was joined by Saskatchewan (Allan Blakeney) and Nova Scotia (John Buchanan). This Gang of Eight mounted challenges against the resolution in provincial courts of appeal in Manitoba, Quebec and Newfoundland. They also launched a public-relations campaign against it both in Canada and in Great Britain, where they strenuously lobbied Members of Parliament.

The Courts Weigh In

Meanwhile, the Patriation Reference case was weaving its way through the Supreme Court. In February 1981, the Manitoba Court of Appeal decided 3–2 in favour of Ottawa. In April, the Quebec Superior Court of Appeal also supported Ottawa in a 4–1 decision. Both courts decided that the federal government had the legal right to patriate and amend the Constitution, without provincial consent.

However, just weeks earlier, the three justices of the Supreme Court of Newfoundland had voted unanimously against the federal procedure. The Newfoundland judgement was handed down as the House of Commons was tied in procedural knots by the Conservative opposition. At the same time, the Gang of Eight were preparing for their own conference to sign an alternative constitutional accord. Promoted largely by Lougheed, it would limit the request to Britain to simple patriation with a different amending formula.

Trudeau suddenly agreed to submit his resolution to the Supreme Court for judicial settlement. But he would not meet the Gang of Eight when they arrived in Ottawa on 16 April 1981. Trudeau ridiculed their “April Accord,” in which Quebec’s Lévesque had agreed to an amending formula that did not provide a specific veto for his province.

Supreme Court Decision

On 28 September 1981, the Supreme Court brought down its judgement. (See Patriation Reference.) It found that Ottawa was legally allowed to make this request of the British Parliament. The justices decided that the resolution offended the constitutional conventions developed in Canada over the years, but that it was not legally enforceable to prevent Ottawa from acting unilaterally. The court held by a 7–2 majority that no legal limit “to the power of the Houses [the House of Commons and the Senate] to pass resolutions” existed.

However, the court also ruled by a 6-3 majority that any proposed amendments that would reduce provincial powers would require a “consensus” of the provinces. To do otherwise 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 was interpreted as a messy win for both sides. It sparked a final round of hurried negotiations and what the prime minister came to call “the one last time” conference. It began in Ottawa on 2 November 1981.

Four Dramatic Days

On the first day of the four-day conference, the federalist side appeared to take the initiative. Premiers Bill Davis (Ontario) and Richard Hatfield (New Brunswick) offered compromise proposals. Davis proposed foregoing Ontario’s traditional veto over constitutional change. Hatfield proposed holding off on implementing parts of the Charter of Rights in New Brunswick for two 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; the formal conference broke up at noon. It reconvened the following day.

The Gang of Eight were in their suite at the Château Laurier hotel, across the street from the conference center. They debated a vague compromise plan put together by British Columbia Premier Bill Bennett. The plan suggested waiting to adopt much of the Charter of Rights until it could be examined by a commission. The commission would report back with recommendations at a later date. Bennett, Lougheed and Buchanan took the scheme to Trudeau. He rejected it in an angry confrontation.

“The proposal by the Gang of Eight would not fly,” wrote Howard Leeson, an advisor to Saskatchewan Premier Allan Blakeney. “It was general discouragement at this point that anything would ever be agreed to.”

A glum mood settled over some of the provincial delegations. Premiers Davis and Blakeney and their officials ran into each other that night at an Ottawa restaurant; they continued private discussions through the evening. The two groups — Ontario allied with Trudeau; Saskatchewan allied with the Gang of Eight — at least agreed, wrote Leeson, “that we must find some way to prolong the talks in order that they might succeed, but there were very few ideas.”

On the third day, Manitoba Premier Sterling Lyon left the conference for the campaign trail. Lévesque also talked of leaving to attend Quebec’s National Assembly. That same day, Blakeney put forth his own proposal. It was discussed around the conference table but made no real progress. Meanwhile, an off-the-cuff remark by Trudeau that perhaps only a referendum could resolve the stalemate was well received by Lévesque. This surprised the other Gang of Eight premiers. Nearly all day was then devoted to discussing a possible referendum. Trudeau emerged in the afternoon to announce to the press somewhat facetiously that there was a new Quebec–Ottawa alliance.

The "Kitchen Accord"

In the meantime, various ministers and advisors from the different provinces had been meeting privately to discuss other options. By the end of the third day, the broad lines of a possible compromise agreement were emerging. What followed was a complex series of manoeuvres. Several individuals played key roles at crucial points.

The first step was a private meeting between three attorneys general — federal Justice Minister Jean Chrétien, Saskatchewan’s Roy Romanow and Ontario’s Roy McMurtry. They had traded notes earlier that morning. In the mid-afternoon, Chrétien and Romanow slipped away to an unused kitchen pantry in the Ottawa conference center to examine some ideas. They pulled McMurtry into the room partway through the discussion. The resulting “kitchen accord,” as it became known, was not recorded in a formal written agreement; it was scratched by the men in rough notes on two pieces of paper.

Most of the other provinces did not know about it. The accord was significant in that it shaped the expectations of the governments of Canada, Ontario and Saskatchewan. It also helped bridge the divide between the Gang of Eight and the federal government. Chrétien, the principal federal negotiator, committed to a compromise that included a “notwithstanding clause.” This would limit the force of a new Charter of Rights by allowing provinces to exempt their laws from certain Charter rights. This became a crucial element in winning enough provincial consent to forge a deal.

Blakeney learned about the accord from his attorney general, Roy Romanow, on Wednesday. When the formal conference adjourned that day, Blakeney invited his Gang of Eight colleagues to meet privately later that night to discuss the matter and flesh out a more complete package. At the same time, Ontario Premier Bill Davis offered to discuss aspects of the accord, as well as various other points, with Trudeau.

The “Night of the Long Knives”

Meanwhile, Newfoundland Premier Brian Peckford and his officials had prepared a draft proposal. It contained some of the ideas already floated at the conference. (See Editorial: Newfoundland’s Contribution to the Patriation of the Constitution.) That night, 4 November, officials from six provinces (Newfoundland, Nova Scotia, PEI, Saskatchewan, Alberta and BC, including at times some of the premiers themselves) worked in Saskatchewan’s hotel suite to refine a proposal based on the Peckford document. Items from the kitchen accord were added to make the proposal acceptable to Ontario and Ottawa. Ontario and the federal government were at this point unaware of the Newfoundland draft. At the same time, many members of the Gang of Eight did not yet know about the kitchen accord or the origins of its compromises. Despite that, vital clauses from each were melded into a single proposal.

Provincial delegations that weren’t represented at the meeting, including Manitoba and Ontario, were notified about the draft late that night. Ontario Premier Bill Davis was even pulled from his bed after midnight by Blakeney, who called Davis to get his support for the package.

Crucially, the Quebec delegation, staying at a hotel across the Ottawa River in Quebec, was not notified during the night. It’s unclear whether an attempt was made to reach Lévesque or his advisors by phone. Peckford says attempts were made, but that calls were not answered. Others say no attempt was made. “The general conclusion,” according to Howard Leeson’s notes, “was that Quebec could never agree with anything, and specifically would not agree to this package… Nevertheless, it was agreed that the proposal must be put to Quebec at the already scheduled 8 a.m. meeting of the Gang of Eight.”

The failure to reach Lévesque that night — and instead, to present him with the completed package at a breakfast meeting on the final day of the conference — prompted Lévesque to claim that he was betrayed by the English-speaking premiers. Lévesque said they plotted against him on what became known in Quebec nationalist circles as the “night of the long knives.” That portrayal would be used to fuel separatist sentiment in Quebec for years to come.

Peckford presented the draft agreement to the Gang of Eight premiers at breakfast, and later to the prime minister and the other premiers at the formal conference table. After some minor adjustments, the federal government, Ontario and New Brunswick signed on, and the deed was done. Lévesque complained bitterly. He was ultimately the only premier who did not sign the deal. He tried in vain to press Trudeau to embrace the earlier referendum option.

Constitution Act, 1982

By 5 November 1981, the constitutional fight was essentially over. In the next few weeks, Indigenous 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 England for relatively quick approval through the British Parliament. Queen Elizabeth II came to Canada to proclaim the new Constitution Act at a rainy ceremony on Parliament Hill on 17 April 1982.

Earlier, Lévesque had left the conference in Ottawa predicting dire consequences for Confederation. “’The Canadian Way,’” he said, mocking the phrase his fellow premiers had used to trumpet their compromise, was “to abandon Quebec at the moment of crisis.”

It was another five years before an agreement was reached to bring Quebec into the constitutional accord. By then the players had changed — including Quebec’s premier, now Robert Bourassa and Canada’s prime minister, now Brian Mulroney. However, their deal to put a Quebec premier’s signature on the Constitution ultimately failed. (See also: Meech Lake Accord; Meech Lake Accord: Document; Charlottetown Accord; Charlottetown Accord Document.)

See also: Constitutional History; Constitutional Law; Statute of Westminster; Editorial: Statute of Westminster, Canada's Declaration of Independence; Constitution Act, 1867 Document; Constitution Act, 1982 Document; Editorial: The Canadian Constitution Comes Home.