Patriation
Encyclopedia
Patriation is a non-legal term used in Canada
to describe a process of constitution
al change also known as "homecoming" of the constitution. Up until 1982, Canada was 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 full sovereignty
.
The word patriation was invented in Canada and based upon the word repatriation
, which means to return to one's country. As the Canadian Constitution was originally a British law, it could not return to Canada. It was first used in 1966 by Prime Minister Lester B. Pearson
in response to a question in Parliament: "We intend to do everything we can to have the constitution of Canada repatriated, or patriated."
was primarily contained in the British North America Act, 1867
, and other British North America Acts
, which were passed by the Parliament of the United Kingdom. Several Canadian prime minister
s, starting with William Lyon Mackenzie King
in 1927, had made attempts to domesticize the amending formula, but could not obtain agreement with the provincial governments
as to how such a formula would work. Thus, even after the Statute of Westminster
granted Canada and other Commonwealth nations
full legislative 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; until 1949, the constitution could only be changed by a further act at Westminster
. The British North America (No.2) Act, 1949
, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction, without involvement of the United Kingdom. The constitution was amended in this manner five times: in 1952, 1965, 1974, and twice in 1975.
This, however, did not stop continued negotiations between federal and provincial governments on the development of 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 the Victoria Charter
in 1971 and more proposed amendments in 1978.
, in which Trudeau promised a new constitutional agreement if the province voted "No" 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. The eight provinces were Quebec
, Nova Scotia
, Manitoba
, British Columbia
, Prince Edward Island
, Saskatchewan
, Alberta
, and Newfoundland
.
Soon the other eight 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 Lévesque 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 British parliament
"[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown in council, parliament, and on the bench was to exercise its residual sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. The Gang soon appealed to the courts. Justice Joseph O'Sullivan of the Manitoba Court of Appeal
found that the federal government's position was incorrect; the constitutionally entrenched principle of responsible government
meant that the Queen, as either Queen of Canada or of the UK, could not legislate for the provinces (i.e. alter their constitutions) only on the advice of her Canadian federal ministers; "Canada had not one responsible government but eleven." But the judges across the country were not unanimous in their conclusions on the matter. Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed. Still, the case went to the Supreme Court of Canada
.
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!" Trudeau, in his memoirs, paraphrased the court as saying "that patriation was legal, but not nice."
, in November 1981. After two days of meetings came to a stalemate, Trudeau pitched an idea to Lévesque: to patriate the constitution as it was, but continue debates for two years and maybe even have a national referendum
on certain issues. Lévesque, feeling threatened that he would be cast as "undemocratic" (especially after the recent referendum
he initiated on Quebec's independence) agreed with Trudeau on the issue. Their respective memoirs have very different stories on the conversation, although the two books agree that both men agreed to such a referendum and that Trudeau was, in effect, lying to Lévesque, although Trudeau is not quite so straightforward in saying it as Lévesque was.
The other seven 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 the backing of the majority of the voting populace, undermining provincial powers. Even though Lévesque would later 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.
, Jean Chrétien
, met with Attorney General of Saskatchewan Roy Romanow
and Attorney General of Ontario
Roy McMurtry
in the kitchen of Ottawa's Château Laurier
hotel. The premiers agreed to get rid of the "opt out" clause, while Chrétien reluctantly offered to include the Notwithstanding Clause
in the constitution. 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. The men at the table that night became known as the Kitchen Cabinet.
As they were all in Quebec, Lévesque and his people remained ignorant of the deal formed in the hotel kitchen until Lévesque walked into the premiers' breakfast and was told the agreement had been reached. Lévesque refused to give his support to the deal and left the meeting; the government of Quebec subsequently announced on November 25, 1981, that it would veto the decision. However, the Supreme Court issued a ruling on the matter
on December 6, 1982, stating that Quebec had never held such veto powers.
The events were very divisive. Quebec nationalists
saw the deal as the English-speaking premiers betraying Quebec, which prompted use of the term Nuit des Longs Couteaux ("Night of the Long Knives"). In English Canada, Lévesque was seen as having tried to do the same to the English-speaking premiers by accepting the referendum. Among those was Brian Mulroney
, who said that by "accepting Mr. Trudeau's referendum idea, Mr. Levesque himself abandoned, without notice, his colleagues of the common front." Jean Chrétien's role in the negotiations made him reviled among sovereigntists
. Until the Quebec Liberals came to power in 1985, every law passed in Quebec used the Notwithstanding Clause.
, was also formally approved by the governments of the United Kingdom and Canada. In a joint address in the Canadian parliament, the sovereign was asked for an amendment to the constitution. The Canada Act contained the Constitution Act, 1982
, which itself included an amending formula involving only Canadian governments. Section 2 of the Canada Act, meanwhile, plainly states that no subsequent UK law "shall extend to Canada as part of its law."
Elizabeth II, the Queen of Canada, who proclaimed the patriated constitution in Ottawa in 1982, was aware of the rift Quebec's exclusion had caused. Thus, being aware that this was the first time in Canadian history that a major constitutional change had been made without the Quebec government's agreement, the Queen privately expressed to journalists her regret that Quebec was not part of the settlement. Quebec sovereigntists have since demanded that the Queen or another member of the Canadian Royal Family apologise for the enactment of the Constitution Act, 1982, calling the event a part of a "cultural genocide of francophones in North America over the last 400 years."
would find a British law supposedly binding in Canada to be just as invalid in Canada "as a law enacted for Canada by Portugal
." Paul Romney argued in 1999 that, regardless of what the British authorities did, the constitutional principle of responsible government
in Canada denied them the right to ever again legislate for Canada; he stated: "[T]he constitutional convention known as responsible government entailed legal as well as political sovereignty. Responsible government meant that the Queen of Canada could constitutionally act for Canada only on the advice of her Canadian ministers. If the British parliament were to legislate for Canada except at the request of the competent Canadian authorities, and the Queen assented to that legislation on the advice of her British ministers, Canadian courts would refuse to enforce that legislation."
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
to describe a process of constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al change also known as "homecoming" of the constitution. Up until 1982, Canada was 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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
to play in the amending process. Hence, patriation is associated with the adoption of the Canadian amending formula
Amendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...
, and the corresponding acquisition of full sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
.
The word patriation was invented in Canada and based upon the word repatriation
Repatriation
Repatriation is the process of returning a person back to one's place of origin or citizenship. This includes the process of returning refugees or soldiers to their place of origin following a war...
, which means to return to one's country. As the Canadian Constitution was originally a British law, it could not return to Canada. It was first used in 1966 by Prime Minister Lester B. Pearson
Lester B. Pearson
Lester Bowles "Mike" Pearson, PC, OM, CC, OBE was a Canadian professor, historian, civil servant, statesman, diplomat, and politician, who won the Nobel Peace Prize in 1957 for organizing the United Nations Emergency Force to resolve the Suez Canal Crisis...
in response to a question in Parliament: "We intend to do everything we can to have the constitution of Canada repatriated, or patriated."
Early attempts
From 1867, the Constitution of CanadaConstitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
was primarily contained in the British North America Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, and other British North America Acts
British North America Acts
The British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982....
, which were passed by the Parliament of the United Kingdom. Several Canadian prime minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
s, starting with William Lyon Mackenzie King
William Lyon Mackenzie King
William Lyon Mackenzie King, PC, OM, CMG was the dominant Canadian political leader from the 1920s through the 1940s. He served as the tenth Prime Minister of Canada from December 29, 1921 to June 28, 1926; from September 25, 1926 to August 7, 1930; and from October 23, 1935 to November 15, 1948...
in 1927, had made attempts to domesticize the amending formula, but could not obtain agreement with the provincial governments
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
as to how such a formula would work. Thus, even after the Statute of Westminster
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
granted Canada and other Commonwealth nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
full legislative 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; until 1949, the constitution could only be changed by a further act at Westminster
Westminster
Westminster is an area of central London, within the City of Westminster, England. It lies on the north bank of the River Thames, southwest of the City of London and southwest of Charing Cross...
. The British North America (No.2) Act, 1949
British North America Acts
The British North America Acts 1867–1975 are the original names of a series of Acts at the core of the constitution of Canada. They were enacted by the Parliament of the United Kingdom and the Parliament of Canada. In Canada, some of the Acts were amended or repealed by the Constitution Act, 1982....
, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction, without involvement of the United Kingdom. The constitution was amended in this manner five times: in 1952, 1965, 1974, and twice in 1975.
This, however, did not stop continued negotiations between federal and provincial governments on the development of 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
John Diefenbaker
John George Diefenbaker, PC, CH, QC was the 13th Prime Minister of Canada, serving from June 21, 1957, to April 22, 1963...
and Lester Pearson culminated in the Fulton-Favreau formula
Fulton-Favreau formula
The Fulton-Favreau formula was a proposed formula of amendment of the Constitution of Canada developed by federal justice minister E. Davie Fulton and Quebec Liberal Guy Favreau in the 1960s...
, but without Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
's endorsement, the patriation attempt failed. In 1968, Pearson was succeeded by Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
, who also advocated patriation. He made several attempts, including the Victoria Charter
Victoria Charter
The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official...
in 1971 and more proposed amendments in 1978.
Patriation achieved
Patriation was given a new impetus after the 1980 Quebec referendum1980 Quebec referendum
The 1980 Quebec referendum was the first referendum in Quebec on the place of Quebec within Canada and whether Quebec should pursue a path toward sovereignty. The referendum was called by Quebec's Parti Québécois government, which strongly favoured secession from Canada...
, in which Trudeau promised a new constitutional agreement if the province voted "No" to sovereignty-association. Trudeau found new allies in Premiers Bill Davis
Bill Davis
William Grenville "Bill" Davis, was the 18th Premier of Ontario, Canada, from 1971 to 1985. Davis was first elected as the MPP for Peel in the 1959 provincial election where he was a backbencher in Leslie Frost's government. Under John Robarts, he was a cabinet minister overseeing the education...
(Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
) and Richard Hatfield
Richard Hatfield
Richard Bennett Hatfield, PC, ONB was a New Brunswick politician and long time Premier of the province .- Early life :...
(New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
). However, there was disagreement over Trudeau's proposed Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, which the other eight provinces opposed as encroachments on their power. The eight provinces were Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
, Manitoba
Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...
, British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
, Prince Edward Island
Prince Edward Island
Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
, Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
, Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
, and Newfoundland
Newfoundland and Labrador
Newfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
.
Soon the other eight premiers came to an agreement, and submitted their own plan for a constitution, without a Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
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
René Lévesque
René Lévesque was a reporter, a minister of the government of Quebec, , the founder of the Parti Québécois political party and the 23rd Premier of Quebec...
, because it meant Lévesque 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 British parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
"[without] bothering to ask one premier." The federal Cabinet and Crown counsel took the position that if the British Crown in council, parliament, and on the bench was to exercise its residual sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. The Gang soon appealed to the courts. Justice Joseph O'Sullivan of the Manitoba Court of Appeal
Manitoba Court of Appeal
The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. It was established in 1906. It is located in the Old Law Courts building at 408 York Avenue in Winnipeg, the capital city of Manitoba...
found that the federal government's position was incorrect; the constitutionally entrenched principle of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
meant that the Queen, as either Queen of Canada or of the UK, could not legislate for the provinces (i.e. alter their constitutions) only on the advice of her Canadian federal ministers; "Canada had not one responsible government but eleven." But the judges across the country were not unanimous in their conclusions on the matter. Further, officials in the United Kingdom indicated that the British parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed. Still, the case went to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
.
The 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 to 2 in favour). However, by a different 6 to 3 majority, the court said that the Constitution was made up as much of convention as written law, and ruled that a unilateral patriation was not in accordance with constitutional convention. Although the courts enforce laws, not constitutional conventions, the message was clear: agreement by a "substantial" number of premiers would be required. This number was not defined and commentators later criticised the court's failure to rule that the approval of all provinces was required.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!" Trudeau, in his memoirs, paraphrased the court as saying "that patriation was legal, but not nice."
The Conference
The decision set the stage for a meeting amongst all premiers and Trudeau in OttawaOttawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
, in November 1981. After two days of meetings came to a stalemate, Trudeau pitched an idea to Lévesque: to patriate the constitution as it was, but continue debates for two years and maybe even have a national referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
on certain issues. Lévesque, feeling threatened that he would be cast as "undemocratic" (especially after the recent referendum
1980 Quebec referendum
The 1980 Quebec referendum was the first referendum in Quebec on the place of Quebec within Canada and whether Quebec should pursue a path toward sovereignty. The referendum was called by Quebec's Parti Québécois government, which strongly favoured secession from Canada...
he initiated on Quebec's independence) agreed with Trudeau on the issue. Their respective memoirs have very different stories on the conversation, although the two books agree that both men agreed to such a referendum and that Trudeau was, in effect, lying to Lévesque, although Trudeau is not quite so straightforward in saying it as Lévesque was.
The other seven 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 the backing of the majority of the voting populace, undermining provincial powers. Even though Lévesque would later 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
Hull, Quebec
Hull is the central and oldest part of the city of Gatineau, Quebec, Canada. It is located on the west bank of the Gatineau River and the north shore of the Ottawa River, directly opposite Ottawa. As part of the Canadian National Capital Region, it contains offices for twenty thousand...
, for the night, telling the other premiers to call him if anything happened.
The Kitchen Accord
That night November 4, 1981 the Minister of JusticeMinister of Justice (Canada)
The Minister of Justice is the Minister of the Crown in the Canadian Cabinet who is responsible for the Department of Justice and is also Attorney General of Canada .This cabinet position is usually reserved for someone with formal legal training...
, Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
, met with Attorney General of Saskatchewan Roy Romanow
Roy Romanow
Roy John Romanow, PC, OC, QC, SOM is a Canadian politician and the 12th Premier of Saskatchewan ....
and Attorney General of Ontario
Attorney General of Ontario
The Attorney General of Ontario is a senior member of the Executive Council of Ontario and governs the Ministry of the Attorney General of Ontario - the department responsible for the oversight of the justice system within the province. The Attorney General is an elected Member of Provincial...
Roy McMurtry
Roy McMurtry
Roland "Roy" McMurtry, OC, OOnt is a judge and former politician in Ontario, Canada and the current Chancellor of York University.-Early life:McMurtry was born in Toronto and educated at St. Andrew's College, graduating in 1950...
in the kitchen of Ottawa's Château Laurier
Château Laurier
The Fairmont Château Laurier is a landmark hotel in Downtown Ottawa, Ontario located near the intersection of Rideau Street and Sussex Drive designed in the Châteauesque style.-History:...
hotel. The premiers agreed to get rid of the "opt out" clause, while Chrétien reluctantly offered to include the Notwithstanding Clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
in the constitution. 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. The men at the table that night became known as the Kitchen Cabinet.
As they were all in Quebec, Lévesque and his people remained ignorant of the deal formed in the hotel kitchen until Lévesque walked into the premiers' breakfast and was told the agreement had been reached. Lévesque refused to give his support to the deal and left the meeting; the government of Quebec subsequently announced on November 25, 1981, that it would veto the decision. However, the Supreme Court issued a ruling on the matter
Quebec Veto Reference
Quebec Veto Reference [1982] 2 S.C.R. 793 is a Supreme Court of Canada opinion on whether there is a constitutional convention giving the province of Quebec a veto over Amendments to the Constitution of Canada...
on December 6, 1982, stating that Quebec had never held such veto powers.
The events were very divisive. Quebec nationalists
Quebec nationalism
Quebec nationalism is a nationalist movement in the Canadian province of Quebec .-1534–1774:Canada was first a french colony. Jacques Cartier claimed it for France in 1534, and permanent French settlement began in 1608. It was part of New France, which constituted all French colonies in North America...
saw the deal as the English-speaking premiers betraying Quebec, which prompted use of the term Nuit des Longs Couteaux ("Night of the Long Knives"). In English Canada, Lévesque was seen as having tried to do the same to the English-speaking premiers by accepting the referendum. Among those was Brian Mulroney
Brian Mulroney
Martin Brian Mulroney, was the 18th Prime Minister of Canada from September 17, 1984, to June 25, 1993 and was leader of the Progressive Conservative Party of Canada from 1983 to 1993. His tenure as Prime Minister was marked by the introduction of major economic reforms, such as the Canada-U.S...
, who said that by "accepting Mr. Trudeau's referendum idea, Mr. Levesque himself abandoned, without notice, his colleagues of the common front." Jean Chrétien's role in the negotiations made him reviled among sovereigntists
Quebec sovereignty movement
The Quebec sovereignty movement refers to both the political movement and the ideology of values, concepts and ideas that promote the secession of the province of Quebec from the rest of Canada...
. Until the Quebec Liberals came to power in 1985, every law passed in Quebec used the Notwithstanding Clause.
Legal closure
With the agreement of the majority of provincial governments, the Canada Act 1982Canada Act 1982
The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...
, was also formally approved by the governments of the United Kingdom and Canada. In a joint address in the Canadian parliament, the sovereign was asked for an amendment to the constitution. The Canada Act contained the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
, which itself included an amending formula involving only Canadian governments. Section 2 of the Canada Act, meanwhile, plainly states that no subsequent UK law "shall extend to Canada as part of its law."
Elizabeth II, the Queen of Canada, who proclaimed the patriated constitution in Ottawa in 1982, was aware of the rift Quebec's exclusion had caused. Thus, being aware that this was the first time in Canadian history that a major constitutional change had been made without the Quebec government's agreement, the Queen privately expressed to journalists her regret that Quebec was not part of the settlement. Quebec sovereigntists have since demanded that the Queen or another member of the Canadian Royal Family apologise for the enactment of the Constitution Act, 1982, calling the event a part of a "cultural genocide of francophones in North America over the last 400 years."
Legal questions
As constitutional scholar Robin White 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 CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
would find a British law supposedly binding in Canada to be just as invalid in Canada "as a law enacted for Canada by Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
." Paul Romney argued in 1999 that, regardless of what the British authorities did, the constitutional principle of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
in Canada denied them the right to ever again legislate for Canada; he stated: "[T]he constitutional convention known as responsible government entailed legal as well as political sovereignty. Responsible government meant that the Queen of Canada could constitutionally act for Canada only on the advice of her Canadian ministers. If the British parliament were to legislate for Canada except at the request of the competent Canadian authorities, and the Queen assented to that legislation on the advice of her British ministers, Canadian courts would refuse to enforce that legislation."