11.2 Constitutional Negotiations and Patriation
4 min read•august 6, 2024
The Trudeau era saw intense constitutional debates, culminating in the of Canada's Constitution. This process aimed to bring the Constitution fully under Canadian control, ending the need for British involvement in amendments.
The was the result of these efforts. It included the , recognized , and established an . However, 's refusal to sign led to ongoing tensions in Canadian .
Patriation and the Constitution Act, 1982
The Process of Patriation
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Top images from around the web for The Process of Patriation
The making of a deal: Trudeau, patriation and the Charter View original
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Pierre Trudeau and the Queen signing the Consitution Act - Policy Options View original
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Justin Trudeau and “reconciliatory federalism” View original
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- Patriation refers to the process of bringing the Constitution of Canada fully under Canadian control
- Prior to 1982, the , 1867 (later renamed the Constitution Act, 1867) served as Canada's constitution but could only be amended by the British Parliament
- Prime Minister sought to patriate the constitution, allowing Canada to amend its own constitution without British involvement
- Patriation required the consent of the federal government and a substantial number of provinces
The Constitution Act, 1982
- The Constitution Act, 1982 resulted from the successful patriation of the Canadian Constitution
- Includes the Canadian Charter of Rights and Freedoms, which guarantees various civil and political rights for Canadians (freedom of expression, right to life, liberty, and security of the person)
- Outlines the procedure for amending the Constitution, requiring the consent of the federal government and a specified number of provinces depending on the nature of the amendment
- Recognizes and affirms Aboriginal and treaty rights
Impact on Canadian Federalism
- Patriation and the Constitution Act, 1982 significantly altered the dynamics of Canadian federalism
- The Charter of Rights and Freedoms placed limits on both federal and provincial governments, as laws could now be challenged on the basis of Charter rights
- The amending formula outlined in the Constitution Act, 1982 gave provinces a formal role in constitutional amendments, enhancing their power relative to the federal government
- Quebec did not formally consent to the Constitution Act, 1982, leading to ongoing tensions in federal-provincial relations (Quebec's distinct status, demands for recognition as a nation within Canada)
Failed Negotiations and Agreements
The Victoria Charter, 1971
- The was a proposed package of constitutional amendments negotiated by the federal and provincial governments in 1971
- Included a formula for amending the Constitution in Canada, provisions for the appointment of Supreme Court judges, and the entrenchment of language rights
- Failed to gain the necessary support from Quebec, as then-Premier withdrew his support due to concerns over the amending formula and jurisdiction over social policy
The Kitchen Accord, 1981
- The was a failed attempt to reach a compromise on constitutional patriation between the federal government and eight dissenting provinces (all except Ontario and New Brunswick)
- Negotiated in the kitchen of the Ottawa Convention Centre during a in November 1981
- Proposed a more decentralized amending formula that would have given each province a veto over certain types of constitutional amendments
- Ultimately rejected by Prime Minister Trudeau, who proceeded with patriation without the full consent of the provinces
Key Issues and Compromises
The Quebec Veto
- During constitutional negotiations, Quebec sought a veto over constitutional amendments to protect its distinct status and autonomy within the Canadian federation
- The Victoria Charter included a provision for a , but the charter ultimately failed to gain Quebec's support
- The Constitution Act, 1982 did not include a Quebec veto, contributing to Quebec's refusal to formally endorse the patriated constitution
The Night of the Long Knives, 1981
- Refers to the night of November 4-5, 1981, during constitutional negotiations in Ottawa
- After the failure of the Kitchen Accord, the federal government and nine provinces (excluding Quebec) reached a compromise on patriation and the amending formula
- Quebec Premier felt betrayed by the other provinces, particularly by the reversal of the Gang of Eight (provinces opposed to Trudeau's patriation plan)
- The incident heightened tensions between Quebec and the rest of Canada and contributed to Quebec's sense of isolation within the federation
The Notwithstanding Clause (Section 33)
- The allows the federal parliament or provincial legislatures to override certain sections of the Charter of Rights and Freedoms for a five-year period
- Included as a compromise to secure provincial support for the Constitution Act, 1982, particularly from provinces concerned about the Charter's impact on their legislative autonomy (Saskatchewan, Alberta)
- The clause has been rarely used, with notable instances being Quebec's use to protect its language laws and Saskatchewan's use to protect back-to-work legislation
Key Terms to Review (24)
1867 Confederation: The 1867 Confederation refers to the process through which the British North American colonies of Canada, Nova Scotia, and New Brunswick united to form the Dominion of Canada on July 1, 1867. This significant political shift established a federal system of governance, allowing the provinces to maintain a degree of autonomy while being unified under a central government, laying the groundwork for Canada's future expansion and development.
Aboriginal rights: Aboriginal rights refer to the inherent rights of Indigenous peoples in Canada to their traditional lands, resources, and cultural practices. These rights are recognized as existing prior to colonialism and are essential for the survival and identity of Indigenous communities. They include both collective rights, such as land claims and self-governance, and individual rights tied to the cultural practices of Indigenous people, emphasizing their unique relationship with the land.
Amending formula: The amending formula is a legal provision in the Constitution of Canada that outlines the process by which amendments can be made to the Constitution. This formula establishes specific procedures and requirements, including the need for approval from both federal and provincial legislatures, thereby ensuring that any changes reflect a consensus across different levels of government. It plays a crucial role in maintaining the balance of power and protecting the rights of provinces within the federal system.
April 17, 1982: April 17, 1982, marks the day Canada officially patriated its Constitution, bringing it home from the United Kingdom and establishing a fully Canadian constitutional framework. This significant event included the passage of the Constitution Act, 1982, which not only included the Charter of Rights and Freedoms but also outlined the amending formula for future changes to the Constitution, allowing Canada to amend its own laws without needing British approval.
British North America Act: The British North America Act, passed in 1867, is the legislation that created the Dominion of Canada by uniting the provinces of Ontario, Quebec, New Brunswick, and Nova Scotia into a single federal entity. This act laid the groundwork for Canada's federal structure, defining the powers and responsibilities of both the federal and provincial governments, and marking a significant shift in governance from British colonial rule to self-government.
Charter of Rights and Freedoms: The Charter of Rights and Freedoms is a fundamental part of Canada's Constitution that guarantees certain rights and freedoms to all individuals in Canada. This charter was introduced in 1982, alongside the patriation of the Constitution, and it reflects Canada's commitment to protecting the civil liberties of its citizens, including freedom of expression, the right to a fair trial, and equality before the law. Its establishment marked a significant shift in Canadian law, emphasizing the importance of individual rights within the legal framework of the country.
Constitution Act, 1982: The Constitution Act, 1982 is a significant piece of legislation that patriated the Canadian Constitution from Britain and included the Canadian Charter of Rights and Freedoms. This act marked a pivotal moment in Canada's history as it established the legal framework for Canadian governance and ensured the protection of individual rights and freedoms. It also allowed Canada to amend its constitution without requiring approval from the British Parliament, emphasizing Canada's legislative independence.
Federalism: Federalism is a political system in which power is divided between a central government and various regional governments, allowing both levels to operate independently in certain areas. This system is essential in balancing the governance of diverse populations and interests, ensuring local autonomy while maintaining national unity. The concept of federalism plays a crucial role in shaping the political landscape of Canada, particularly as it relates to the formation of the Dominion and subsequent constitutional negotiations.
First ministers' conference: A first ministers' conference is a meeting involving the premiers of Canada's provinces and territories and the Prime Minister, where they discuss key national issues and policies affecting the country. These conferences play a critical role in shaping Canadian federalism by fostering dialogue among various levels of government, influencing constitutional negotiations, and addressing matters such as resource management and health care.
Kitchen Accord: The Kitchen Accord refers to an informal agreement made in 1981 between the federal government of Canada and several provinces to patriate the Constitution and establish a new amending formula. This agreement was crucial in shaping Canada’s constitutional landscape, as it aimed to address provincial concerns while facilitating the transfer of constitutional power from Britain to Canada.
Multiculturalism: Multiculturalism is a social and political approach that recognizes, appreciates, and promotes the cultural diversity of a society. It emphasizes the importance of different cultural backgrounds coexisting and contributing to a common national identity while ensuring that minority cultures are respected and valued.
Nationalism: Nationalism is a political ideology that emphasizes the interests and culture of a particular nation, often placing it above others. It played a crucial role in shaping identities and political landscapes, particularly during significant events like Confederation and constitutional negotiations. Nationalism can foster unity within a nation but may also lead to tensions with other nations or groups, as it promotes the idea of self-determination and national pride.
Night of the Long Knives: The Night of the Long Knives refers to a series of political extrajudicial executions that took place in Germany from June 30 to July 2, 1934, aimed at consolidating Adolf Hitler's power by eliminating potential rivals within the Nazi Party and beyond. This purge primarily targeted leaders of the Sturmabteilung (SA), including Ernst Röhm, as well as other political opponents, solidifying Hitler's control over both the party and the military establishment.
Notwithstanding clause: The notwithstanding clause is a provision in the Canadian Charter of Rights and Freedoms that allows federal or provincial governments to pass laws that may operate notwithstanding or despite certain sections of the Charter. This clause essentially grants governments the power to override certain individual rights and freedoms for a specified period, making it a controversial yet significant feature in discussions surrounding constitutional rights and governmental authority.
Patriation: Patriation refers to the process of bringing the Constitution of Canada under Canadian control, which was completed with the passage of the Constitution Act, 1982. This act included important components such as the Charter of Rights and Freedoms, which enhanced the protection of individual rights. Patriation was a significant step in Canada's development as a fully independent nation, as it allowed Canada to amend its Constitution without requiring approval from the British Parliament.
Patriation Reference: The patriation reference refers to the legal and constitutional process through which Canada brought its Constitution under its own authority, specifically the Constitution Act of 1982. This process involved negotiations between federal and provincial governments, leading to the transfer of constitutional powers from the United Kingdom to Canada, symbolizing a significant step toward full sovereignty.
Pierre Trudeau: Pierre Trudeau was a Canadian politician who served as the 15th Prime Minister of Canada from 1968 to 1979 and again from 1980 to 1984. He was a significant figure in Canadian politics, known for his charismatic leadership style and his role in shaping modern Canada, particularly in relation to social issues, constitutional changes, and multiculturalism.
Quebec: Quebec is a province in Canada, known for its distinct French-speaking population and rich cultural heritage. It played a crucial role in the political evolution of Canada, especially through its influence on the British North America Act, which shaped the Confederation, and its involvement in constitutional negotiations that led to the patriation of the Constitution.
Quebec veto: The Quebec veto refers to the constitutional provision that allows the province of Quebec to reject certain constitutional amendments. This mechanism recognizes Quebec's unique status within Canada and aims to protect its interests and cultural identity during constitutional negotiations and patriation efforts.
René Lévesque: René Lévesque was a prominent Quebec politician and the founder of the Parti Québécois, who played a crucial role in advocating for Quebec sovereignty and the Quiet Revolution. He is best known for his push for social and economic reform in Quebec, which helped spur a rise in Quebec nationalism and separatism during the 1960s and 1970s.
Robert Bourassa: Robert Bourassa was a prominent Quebec politician who served as the Premier of Quebec from 1970 to 1976 and again from 1985 to 1994. His leadership was characterized by his significant involvement in constitutional negotiations and the patriation of the Canadian Constitution, especially concerning Quebec's distinct society and its rights.
Secession Reference: A secession reference is a legal and political mechanism by which a region or province seeks to determine its right to separate from a larger political entity, often through a public vote. This term is crucial in understanding the constitutional negotiations surrounding Canada's federal structure, especially during debates about provincial autonomy and the rights of provinces to self-determination.
Sovereignty: Sovereignty refers to the ultimate authority and power of a state or governing body to govern itself without interference from external sources. It encompasses the concepts of political independence, territorial integrity, and the capacity to create laws and policies that reflect the interests and will of its people. In the context of constitutional negotiations and patriation, sovereignty becomes a pivotal issue as it defines the relationship between Canada and the British Parliament, ultimately leading to Canada's constitutional independence.
Victoria Charter: The Victoria Charter was a proposed amendment to Canada's Constitution that aimed to address the concerns of provinces regarding their powers and responsibilities, and was developed during the constitutional discussions in the 1970s. It sought to provide a framework for better federal-provincial relations and clarify the division of powers while recognizing Quebec's distinct society. This charter is significant as it reflects ongoing constitutional debates and negotiations surrounding the Canadian federal structure.