The Constitution

Constitutional History: Patriation, the Amending Formula, and Constitutional Renewal

When Canada's independence from Britain was recognized in principle in the Balfour Report of 1926, Canadians faced the task of developing a constitutional amendment procedure that would permit the patriation of the Constitution (which was then a British statute) and ensure that Canada's future constitutional development could be undertaken by Canadians without reference to a foreign Parliament.

Prior to 1968, discussions on the amending formula were always held on their own merits - in 1927, 1931, 1935-1936, 1950, 1960-61, and 1964 - without being linked to other questions of substantive change. Ultimately, these discussions all ended in failure. Formal changes to Canada's Constitution consequently remained under British legislative authority when the Statute of Westminister was adopted in 1931 and Canada's independence was recognized in law.

In 1968, the Prime Minister and all the Premiers agreed to launch, for the first time in Canada's history, a broad constitutional renewal process that included not only patriation and an amending formula, but also changes to national institutions and the distribution of powers, as well as the entrenchment of rights in the Constitution.

Agreement in principle was reached on a limited set of proposals at the Victoria Conference in 1971, but ultimately they were not adopted, and the Constitution remained a British statute. A more limited exercise, conducted in 1975-76, was aimed at patriation with an amending formula, without pursuing substantive changes to the Constitution at the same time. However, it also ended in failure.

Although Quebec has been calling for increased provincial powers for years, the election of the Parti Québécois in 1976, on a platform calling for a dramatic distancing of Quebec from the rest of the Canadian federation, made constitutional renewal seem all the more pressing. The federal government responded by publishing its vision of constitutional renewal in A Time for Action in June 1978. Between October 1978 and February 1979, governments worked intensively on a 12-item agenda for constitutional change, but the February Conference of First Ministers ended in failure to reach agreement on any change.

In late 1979, the Parti Québécois government released a paper on Canadian federalism that called for a radical recasting of the Quebec-Canada? relationship. The paper did not advocate Quebec's complete institutional withdrawal from Canada, but rather called for the creation of a very loose "partnership" between Quebec and Ottawa, called "sovereignty-association".

A referendum to seek a mandate to negotiate such an arrangement was set for May 20, 1980. On May 14, the Prime Minister of Canada promised Quebecers a "renewed federalism" if they voted "No" in the impending referendum.

"I know that I can make a most solemn commitment," he said, "that following a 'No' vote we will immediately take action to renew the Constitution and we will not stop until we have done that." Six days later, Quebecers voted not to give their government the mandate to negotiate sovereignty-association.

The referendum and the pledge of the Prime Minister and the majority of the other Premiers during the referendum campaign heralded the start of a new, vigorous effort to patriate the Constitution. The summer witnessed a series of federal-provincial ministerial meetings, which culminated in the First Ministers' Conference of September 1980.

Some of the major issues discussed at the summer meetings had reflected the federal government's own agenda: patriating the Constitution with a made-in-Canada amending formula; a statement of principles; a charter of rights; a constitutional commitment to reduce regional economic disparities (sometimes called "equalization"); and a strengthening of federal powers over the national economy.

Other issues arose from the provinces' long-standing calls for increased authority in certain areas: natural resources, communications and broadcasting, family law, and offshore resources and fisheries. The provinces also sought reform of the Senate and Supreme Court of Canada so that these institutions would better reflect the federal nature of Canada.

The provincial agenda reflected matters that had been raised in the 1978-79 discussions and was similar in orientation to positions advocated by the Canadian Bar Association (1978), the Pepin-Robarts? Task Force (1979), and the Liberal Party of Quebec's Livre Beige (1980).

At the September conference, however, the First Ministers failed to reach unanimous agreement on any single item. Consequently, on October 6, 1980, the federal government indicated that it intended to patriate the Constitution unilaterally, without the consent of the provincial premiers, by introducing a Joint Address to the Queen in the House of Commons.

Eight of the provinces immediately protested this unilateral action. Manitoba, Quebec, and Newfoundland referred the matter to their courts and the matter was ultimately referred to the Supreme Court of Canada by the federal government. On September 28, 1981, the Supreme Court of Canada rendered its decision that a "unilateral" patriation of the Constitution was legal. But it added that a "substantial degree" of provincial consent was required by constitutional convention before the federal-provincial relationship could be fundamentally altered by a request to Britain for constitutional amendment.

In the wake of the Court's decision, the federal government convened another First Ministers' Conference on November 2, 1981. Ottawa and the provinces, with the exception of Quebec, ultimately agreed on a package of constitutional reforms, including the patriation of the Constitution with an amending formula and a charter of rights; a commitment to equalization; the strengthening of provincial control over natural resources; and the recognition and affirmation of the existing rights of Canada's aboriginal peoples.

The agreement represented a compromise between nine provinces and the federal government. These provinces accepted Ottawa's proposal for a Charter of Rights in exchange for both the right to override certain portions of the Charter by means of the notwithstanding clause, and the inclusion of an amending formula devised by the provinces.

However, the Quebec government continued to dissent, arguing that Quebec's claims had been ignored, that a deal had been reached without Quebec's knowledge, and that the Prime Minister had reneged on his promise of "renewed federalism". On December 1, 1981, by resolution, the National Assembly rejected the patriation package. Indeed, throughout Quebec, the patriation experience left many feeling wounded and isolated.