Patriation

Patriation is a legal term particularly used in Canada, to describe a process of constitutional change also known as "bringing home" the constitution. The term is based upon the word repatriation, since critics of the use of the word "repatriation" pointed out that the constitution could not "return" to Canada, as it was not formulated in Canada in the first place. Thus the term "patriation" was coined as a word meaning "to make something part of one's own nation."

Canada, as a former British colony, was until 1982 governed by a constitution that was a British law and could be changed only by an Act of the British Parliament. Patriation thus specifically refers to making the constitution amendable by Canada only, with no role for the Parliament of the United Kingdom to play in the amending process. Hence, patriation is associated with the adoption of the Canadian amending formula, and the corresponding acquisition of sovereignty.

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 British Parliament in Westminster. The constitution could be changed only by an Act of the British Parliament. Several Canadian Prime Ministers, starting with William Lyon Mackenzie King in 1927, had made attempts to domesticize the amendment formula, but could not obtain agreement with the provincial governments as to how a new amending formula would work. Thus, even after the Statute of Westminster had granted Canada and other Commonwealth nations some 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.

This, however, did not stop continued negotiations between federal and provincial levels of government in Canada to develop 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 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 with 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 "Non" 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.

Soon the eight other 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 Levesque 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 U.K. Parliament, "..[without] bothering to ask one Premier." The "Gang" soon appealed 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 was 7-2 in favour). However, saying that the Constitution was made up as much of convention as written law, it was preferable if it could first work out an agreement with a "substantial" number of Premiers (This decision was 6-3 in favour). This number was left undefined, Trudeau himself decided it meant 5-9 Premiers.

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!"

The Conference

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

The other 7 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 backing of the people, undermining provincial powers. Even though Lévesque would 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, telling the other Premiers to call him if anything happened.

The Kitchen Accord

That night, November 4, 1981, Attorney-General Jean Chrétien negotiated with the Attorneys-General of Saskatchewan (Roy Romanow) and Ontario (Roy McMurtry). The provincial Premiers agreed to get rid of the "opt out" clause, while Chrétien reluctantly offered the Notwithstanding Clause on the Constitution. Lévesque was not called. 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" because of the negotiations in a kitchen.

The next morning, Lévesque walked into the Premier's breakfast and was told a deal had been made. Lévesque refused to agree to the deal, and left the meeting. Quebec announced on November 25, 1981 that it would veto the deal. However, the Supreme Court issued a ruling on December 6, 1982, stating that Quebec had never held such veto powers. Until the Quebec Liberals came to power in 1985, every law passed in Quebec used the "Notwithstanding Clause."

The events were very divisive in Canada. Many Québécois saw the deal as the English-speaking premiers stabbing Quebec in the back, which would prompt many Quebec nationalists to call it the "Night of the Long Knives." Many in English Canada saw Lévesque as trying to do the same to the English-speaking premiers by accepting the referendum. Jean Chrétien's role in the negotiations made him almost universally reviled among sovereignists.

With this agreement, the Canada Act 1982 was therefore approved by the governments of the United Kingdom, Canada, and all provinces save Quebec. The Canada Act contained the Constitution Act, 1982, which included an amending formula involving only Canadian governments. Section 2 of the Canada Act, meanwhile, plainly states that no UK law "shall extend to Canada as part of its law."

Legal questions

As constitutional scholar Peter Hogg has noted, some might think that, since the Canada Act 1982 is British as well as Canadian law, the UK could theoretically repeal it and declare its laws to be binding in Canada. 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."

Cultural references

The patriation of the Constitution was dramatized in the climax to the television film Trudeau (2002), which depicts Levesque as allying with the premiers solely for the purpose of disrupting Trudeau's moves for constitutional reform.

References

• Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.