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The Constitution Act
It was one of the most important pieces of legislation in Canadian history. It was something that attracted controversy and its impact is felt to this day. It was the Constitution Act of 1982 and today I am looking at how this landmark document was created and the impact it would have on Canada.
To start with our journey into the Constitution Act, we need to delve back to the British North America Act of 1867, which formed Canada. At the time, only the British Parliament had the authority to change anything in the British North America Act.
In 1931, the Statute of Westminster was passed and this gave Canada full autonomy to self-govern itself. As Canada gained more independence from Britain, several questions began to arise over whether the government could amend the constitution unilaterally, or did the government have to work with the provinces. Would all the provinces have equal votes, or would larger provinces have more votes than smaller ones? What would be the role of Quebec and would it get a veto?
The issues of constitutional change would continue for the next 50 years. There would be federal-provincial conferences over the matter but they all ended in failure.
In 1971, Prime Minister Pierre Trudeau would create the Victoria Charter, as a set of proposed amendments to the constitution. This charter would have created a bill of rights that included freedom of expression, freedom of religion and the right to vote regardless of race, religion or sex. Language rights were also to be enshrined within the act.
Negotiations would begin but Robert Bourassa, the premier of Quebec, would stall things after the rest of the provinces had agreed to the act. Bourassa was able to slow the passing of the act by putting in a proposal that would give provinces control over social policy, while the federal government would provide money for the policy.
Macleans would write at the time, quote:
“At the constitutional conference, the new Victoria Charter, designed very largely to guarantee the official position of the French language and to protect other French-Canadian interests, was deliberately rejected by Quebec because it failed to satisfy her insatiable demand for provincial independence.”
It would not be until 1980 and the Quebec Referendum that the issue of the constitution came up again. During the referendum, to keep Quebec in Canada, Prime Minister Pierre Trudeau would promise Quebecers that Ottawa would open constitutional negotiations.
When the referendum was finished and the separatists had lost, Trudeau fulfilled this promise and began to move down the road to amending the Constitution, but also creating a new charter of rights.
Trudeau began to assemble a group of constitutional advisors around him to begin to draft the proposed constitution and Charter of Rights and Freedoms.
A First Ministers Conference was then held on Sept. 8, 1980. Quebec premier Rene Levesque would leak a copy of Ottawa’s 64 page secret negotiating strategy the day before the conference. It was then leaked to the press on the second day of the conference. This severely hurt the progress of the conference and things did not progress well.
Levesque would also tell Trudeau to stop worrying about the quote:
“largely symbolic act of patriating that old piece of paper known as the constitution.”
Peter Lougheed, the Alberta premier, wanted more provincial powers, something supported by other premiers such as Saskatchewan’s Allan Blakeney.
On Oct. 2, Prime Minister Trudeau decided he would proceed alone on the matter and would make a unilateral request to the British Parliament. He would appear on national television to detail his plan. He would say quote:
“The 11 first ministers have failed to reach agreement as they had failed so many times before. But must that forever prevent the people of Canada from confirming their independence and securing their freedoms? Surely, the independence of the nation, the unquestioned right of Canadians to rule themselves, is not a matter for dispute among governments. Independence belongs to all Canadians.”
This began with asking the British to amend the British North America Act through a resolution in Canada’s Parliament. Unfortunately, Leader of the Opposition Joe Clark held up the resolution and the premiers then took Trudeau to court over the matter.
The Liberals would then invoke closure on the resolution to move it into the committee stage in Parliament. When this happened, several Progressive Conservative MPs rushed the chair of the Speaker of the House with fists waving, angry they could not still debate the matter.
The Parliamentary Committee was the first one to be broadcast on television. The committee would sit for 65 days, and were petitioned by 914 individuals and 294 groups. Through these deliberations, the first Charter was revised and redrafted five different times.
At the time, only Ontario and New Brunswick were in support of the constitutional change, while all the rest of the provinces were opposed. The other premiers were called The Gang Of Eight, with Alberta Premier Peter Lougheed and Levesque seen as the leaders.
The group wanted to meet in Ottawa with Trudeau on April 16, 1981 but he refused to meet them and ridiculed what he called the April Accord.
On Sept. 28, 1981 the Supreme Court of Canada issued its ruling that Trudeau was legally allowed to proceed with a resolution of the Senate and House of Commons. The court held a 7-2 majority in the matter. The court also ruled 6-3 that any proposed amendments that would reduce provincial powers would require a consensus of the provinces.
Justice Minister Jean Chretien would then call for the dissenting provinces to quote:
“Put aside their personal feelings and do nothing which can encourage disrespect for the Supreme Court and the law.”
On Nov. 2, 1981, the One Last Time Conference was held over the course of four days.
On the first day, Bill Davis and Robert Hatfield offered compromises that included giving up Ontario’s veto over constitutional change. The Gang of Eight brought forward a compromise that the Charter of Rights be delayed in adoption until a commission could report back with recommendations at a later date. Trudeau would immediately reject this.
During the conference, Premier Davis and Saskatchewan Premier Allan Blakeney randomly ran into each other at a restaurant and they would have a private discussion through the evening and both agreed that they needed to find a way to prolong talks in order that they succeed.
On the third day, Trudeau then made a remark that perhaps a referendum would resolve the stalemate. Levesque would respond well to this and the rest of the day was spent discussing a possible referendum. By the end of the day, there was a new Quebec-Ottawa alliance announced by Trudeau.
At this same time, federal Justice Minister Jean Chretien, Saskatchewan Justice Minister Roy Romanow and Ontario Justice minister Roy McMurtry slipped away to a kitchen pantry in the conference centre to discuss idea. This would become known as The Kitchen Accord, and it was drafted not as a formal written agreement, but on two pieces of paper in rough notes. Most of the provinces had not been informed of this but the accord would shape the expectations of the two provinces and the federal government. It would also bridge the divide between the federal government and the Gang of Eight but Levesque was not part of the meeting, either because he wasn’t invited or he could not be reached.
The biggest thing to come from the accord was the notwithstanding clause, which allowed provinces to exempt their laws from certain Charter rights.
After being told of the Kitchen Accord by Romanow, Blakeney would meet with the rest of the Gang of Eight to discuss the matter. Davis would go and discuss the Kitchen Accord with Trudeau.
Levesque would find out about the completed package agreed upon during the night over breakfast on the final day of the conference.
Levesque accused the federal government and the other provinces of proceeding without Quebec. In Quebec, the province would call the discussions of the complete package, the night of the long knives. Levesque would feel betrayed by not only Trudeau, but the other premiers.
He would state quote:
“We took it for granted that these people were of good faith and that if something was happening, they would give us a call. The only call we had was to say there was a breakfast meeting.”
The federal government and nine of the 10 provincial governments with the exception of Quebec eventually agreed on a proposal to send to Britain’s Parliament. Under this proposal, the repatriated Constitution would include a formula for making future amendments. It would also include a Charter of Rights and Freedoms.
The next day, the Kingston Whig Standard wrote quote:
“Canada’s new constitution was conceived in a kitchen and born in a railway station after all-night gestation in two smoke-filled hotel rooms.”
Peter Newman of Macleans wrote quote:
“The accord of Nov. 5, 1981 will be carved in this country’s history as one of those rare moments when our political leaders realized what the people of this country have known all along. That Canada is, and always will be, greater than the sum of its parts.”
Over the next few weeks, the Indigenous and women’s groups successfully lobbied to have certain clauses reintroduced that had been removed during negotiations.
In all, there are seven parts to the Constitution Act of 1982.
Part One focuses on preventing the federal, provincial and territorial governments from infringing on Canadian rights and freedoms. The notwithstanding clause allows the federal and provincial governments to be exempt from any law under certain conditions.
Part Two guarantees the rights of the Indigenous of Canada. This provides the Indigenous with treaty rights and protects the activities, practice and traditions of the Indigenous that are integral to their cultures.
Part Three recognizes the practice of providing equalization payments to poorer provinces.
Part Four required the prime minister and the premiers to hold a conference before April 17, 1983 to discuss the rights of the Indigenous people of Canada.
Part Five outlines the procedure for amending the Constitution. Sections of the Constitution can be changed with approval of the Senate, House of Commons and the Legislatures but it requires at least seven of Canada’s provinces that make up at least 50 per cent of Canada’s population. In order to change the Supreme Court, the use of French and English in Canada, the offices of the Queen, Governor General or Lt. Governor require unanimous approval in the Senate and all 10 provinces agreeing.
Part Six amends the British North America Act of 1867 to give provincial governments jurisdiction over their non-renewable natural resources.
Part Seven focuses on minor provisions.
The Charter of Rights and Freedoms, which is in the first part of the Constitution Act, was created to give certain political, legal and human rights to the people of Canada from the policies and actions of all levels of government. This is similar to the Canadian Bill of Rights but that was limited as a federal statute, and was not directly applicable to provincial laws.
On Dec. 2, 1981, the House of Commons finished its long debate over the Constitution Act. Quebec would make a demand for acceptance of the new constitution during the Parliamentary debate. These conditions were the recognition of Quebec as one of the two founding peoples of Canada and a distinct society, a Quebec veto or financial compensation for opting out, implementation of a watered down charter of rights which allowed Quebec to opt in to education guarantees for its English minority, and increased control over its natural resources.
These were all rejected by Prime Minister Trudeau in a ten page letter to Levesque.
Liberal Warren Allmand would vote against his own party’s constitution. He would that the constitution betrayed Quebec Anglophones since minority language education rights in Quebec only came into effect with the assent of the Quebec assembly, while outside the province minority language rights took effect immediately. He would state quote:
“This type of discriminatory clause comes about at a time when the signs of the people of my province are being taken down. When their social, educational and business institutions are under attack, when they are being squeezed.”
Maurice Bossy, a Liberal MP, arrived to vote on the Act with a bag of dry ice against his chest. He had been discharged briefly from the hospital after open-heart surgery so he could vote. He had to make sure he moved slowly to prevent his stitches from tearing.
Not everyone was eager to vote. Progressive Conservative MP Fred McCain didn’t attend, stating quote:
“I had other things to attend to and I attended to them.”
Joe Clark had told his caucus that if they couldn’t vote for the Constitution, he didn’t want them voting at all. Despite this, 17 of his MPs ignored this and still voted against the Act, along with five Liberals and two New Democrats. The total vote was 246 in favour and 24 against.
Liberal Stan Hudecki voted against the Constitution because it did not ban abortions. Garnet Bloomfield, another Liberal, voted against it for the same reason. He would state quote:
“I believe the unborn are part of the human family and they are omitted from the Charter of Rights.”
Progressive Conservative MP Ron Huntington would state he was against the constitution because it did not come from the people. He would state quote:
“The definition of our rights should have come from a constituent assembly, not a political brothel such as the House of Commons. This was not a constitution, but a prostitution, put together by the prime minister and some premiers meeting at the 11th hour and 55th minute.”
After the vote, most of the House of Commons began to sing O’Canada, although those who voted against the motion did not.
In Quebec, the provincial flags were lowered to half-mast as a symbol of the provincial government’s determination to fight the constitution that had been adopted.
For those who had been pushing for the constitution, it was a time to celebrate. Jean Chretien would state quote:
“I’m very happy because it has been a long one-and-a-half years.”
Opposition leader Joe Clark was also happy over the passing of the act, but highlighting how Quebec appeared to be left out. He stated quote:
“I think that every Canadian would prefer to have a situation where the people of Quebec were involved.”
It would then go to the British Parliament but there was not universal support for it there. On Feb. 17, 1982, 334 British MPs agreed to the new Constitution Act. That being said, a total of 44 Members of Parliament voted against the Act citing they had concerns over Canada’s treatment of Quebec and the Indigenous. Prime Minister Margaret Thatcher also had concerns about the inclusion of the Canadian Charter of Rights and Freedoms within the Canada Act.
Foreign Secretary Lord Carrington would state quote:
“It is to the government of Canada that the Indians must look for solutions.”
One Tory MP would state that he was disappointed that the provinces had settled with Trudeau.
Support for Canada to have its own Constitution would come from several Members of Parliament. Lord Hankey would state quote:
“Surely Canada is a nation that is fit to order its affairs and arrange its own constitution. For goodness sake, do not let us go busybodying about.”
It would receive Royal Assent on March 29, 1982.
On April 17, 1982, Queen Elizabeth II signed the new act in the Canadian House of Commons, repatriating Canada’s Constitution and enshrining the Charter of Rights and Freedoms. The document she signed was made from Manitoba flax.
Queen Elizabeth II would state in a ceremony on Parliament Hill quote:
“I want to offer my personal congratulations to the Prime Minister of Canada and my Canadian government and the premiers and governments of the provinces on the wisdom and statesmanship they have shown in reaching agreement on this new Canadian constitution.”
She would continue quote:
“It is one of the quirks of history that over a century should have passed before Canada obtained her own Constitution formulated by Canadians and approved by her own Parliament. But the years have not been wasted and a great nation has grown up in this magnificent land.”
Trudeau would state quote:
“After 50 years of discussion, we have finally decided to retrieve what is properly ours. I simply wish that the bringing home of our Constitution marks the end of a long winter, the breaking of the ice jams and the beginning of a new spring.”
Tommy Douglas would say of Trudeau quote:
“He stuck with it when many others would have quit. Today, the Canadian people owe him a real debt of gratitude for what he has done.”
Queen Elizabeth would state she was sad that Quebec was not part of the deal, and she would state she was often puzzled of the chronic inability of the country to come to terms with constitutional change.
As for regular Canadians, they had their opinions on the entire thing. Frank McKnight, a delivery truck driver would say quote:
“Look it does mean something that the Constitution is back. Finally, we’re on our own. But we don’t need the Queen. As far as I’m concerned, they could have mailed it.”
George Zubko would state quote:
“Some people want it, some think it is a lotta malarkey. I don’t have much to say one way or the other.”
A Mrs. Lewis was less pleased about the constitution, stating quote:
“I think its very foolish of the Queen. She’s just being used by that man Trudeau. And he’s just a you-know-what. He’s using her for politics the way he uses everyone. And its not our constitution, its his and we don’t want it.”
Isbhel Elliot would state quote:
“I care about the Constitution, I don’t care about the Queen. She’ll probably be bored silly anyway. It would be nice if we an annual February holiday out of it.”
John D’Erceville would compare the Constitution signing to Nazi Germany, where he grew up as a child, stating quote:
“In that Bill of Rights we are facing the loss of our freedom.”
His wife Irma added quote:
“All the rights we have now will have subjects attached. Of course the laws and conditions will be described as reasonable only to be used against the bad guys, only when necessary. That is how Hitler started.”
In Quebec, Rene Levesque would speak to thousands of cheering Quebecers and would take part in a march of Quebec, leading a procession of 20,000 from one downtown park to another. He would say quote:
“It is a cry of confidence by French Quebecers, who are surer than ever that we are going to make, ourselves, our own country, here in our own home, without hostility to anyone.”
Sadly, for Levesque, he would pass away only three years later, before new Accords came along to bring Quebec into the Constitution.
The Charter would see a greater expansion of the scope of judicial review, since the Charter is more explicit with respect to the guarantee of rights and the roles of judges in enforcing those rights, compared with the Bill of Rights.
Macleans would write on how the Constitution had changed the political landscape, stating quote:
“Up until now, the constitutional debate seemed an abstract political poker game, with the feds and provincial premiers more concerned with preserving their place in the political sun than trying to reinforce citizens rights. Now that the charter is law, our lives have been imperceptibly altered.”
This was not the end of the Constitutional debate.
The Quebec government would take the matter to the Supreme Court, stating that the new constitution was adopted unconstitutionally because it did not have the consent of Quebec. All nine justices rejected the claim.
Levesque would state quote:
“We are nothing more than an internal colony that lives at the will of another people.”
In 1984, Brian Mulroney became prime minister and one of his main goals was to amend the Constitution to make it acceptable for Quebec. At the time, the province was now led by Robert Bourassa.
In 1987, all the premiers settled on amendments as part of the Meech Lake Accord.
Unfortunately, Manitoba and Newfoundland refused to ratify it and the accord collapsed.
Five years later in 1992, the Charlottetown Accord was drafted but it was defeated in a national referendum and Quebec stated that the province had been humiliated by the accord. This would lead to the growth of the Bloc Quebecois party and a complete reshaping of Canadian politics that continues to this day.
The impact of the Constitution Act would spread beyond Canada. Australia passed the Australia Act in 1986, establishing Australia as its own independent country. New Zealand would also pass its own Constitution Act in 1986.
Information from Canadian Encyclopedia, Macleans, Ottawa Citizen, Montreal Gazette, Calgary Herald, Owen Sound Times, National Post, CBC, Kingston Whig Standard, Edmonton Journal, Vancouver Sun,