- 1 Etymology
- 2 Early attempts
- 3 Trudeau and "Mega-Constitutional" Politics
- 4 Patriation achieved
- 5 Legal questions
- 6 Notes
- 7 References
- 8 Bibliography
- 9 External links
The word patriation was invented as a back-formation from repatriation, a term that usually refers to someone returning to one's country. As the Canadian constitution was originally a creation of the Imperial Parliament in Westminster, it could not return to Canada. The term 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."
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 Parliament of the United Kingdom in its capacity as the Imperial Parliament.
Several Canadian prime ministers, 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.
Negotiations continued sporadically 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, including the Confederation of Tomorrow conference in Canada's centennial year, culminated in the Fulton–Favreau formula. but without Quebec's endorsement, the patriation attempt failed.
Trudeau and "Mega-Constitutional" Politics
In 1968, Pearson was succeeded by Pierre Trudeau, a constitutional scholar who also advocated patriation.
Trudeau publicly announced that constitutional reform should take place in three phases: The first to patriate the document with an amending formula, the second to include a "Charter of Rights" that would entrench both individual rights as well as minority language rights against both federal and provincial government interference, and the third order of business would be the division of powers. This was in basic conflict with the government of Quebec, whose policy was to refuse patriation until the Quebec's concerns with the division of powers had been settled.
Trudeau's Liberals made several attempts to gain a consensus; The closest to success was the Victoria Charter of 1971, which saw an agreement in principal between all Premiers and the federal government. The agreement included a minimalist Charter and included with an amending formula based on region: any future amendment would require the approval of the legislatures of Ontario and Quebec, as well as the legislatures of two provinces with more than half the population of the Western and Atlantic provinces, respectively. While Quebec Premier Robert Bourassa announced his initial agreement, fierce opposition upon his return prompted him to rescind his approval.
At the 1978-79 conference, Trudeau prepared for the first time to provide some Federal concessions with regard to the division of powers, including family law, fisheries, and resources. However, the other Premiers balked, with speculation that the Premiers were waiting to see if the more province-friendly Progressive Conservatives would win the coming federal election.
Patriation was given a new impetus after the 1980 referendum on Quebec independence, before which Trudeau promised a new constitutional agreement if the majority of Quebecers voted "No". Constitutional studies were undertaken during the summer of 1980, with provincial and Federal representatives meeting at a conference in September.
After a number of days of negotiation, and the leak of the Kirby Memo, Quebec, after negotiations with the other Premiers at the Chateau Laurier, drafted a list of 10 powers to be devolved to the provinces in exchange for consent to patriation. Trudeau, when presented with the document, refused to finish it, and proclaimed that he would seek House of Commons approval to proceed with a unilateral amendment. Faced with Lyon's charge that it would "tear the country apart," Trudeau responded that Canada could not have control of its own constitution and a charter when most provinces had their own, the country would deserve to be torn apart. 
Trudeau ended the conference by stating that "It's the beginning of the end, or the end of the beginning."
The Canada Bill and the "People's Package"
Trudeau, announcing his belief that the Premiers were dealing in bad faith, met with his caucus to propose a new course. After offering a wide range of options and proposing full reform, a member shouted "Allonz-y en Cadillac!" to general approval. Taking the proposal to Cabinet, some Ministers proposed using the maneuver to increase Federal economic powers, Trudeau demurred.
On October 2, 1980, Trudeau announced on national television his intention to proceed with unilateral patriation, in what he termed the "people's package." The proposal would unilaterally request patriation from the UK government as well as the entrenchment of a Charter of Rights. The proposal would call for a referendum to be held within two years on the amending formula for the new constitution, which would be a choice between the Victoria Charter veto formula and any joint proposal by the provinces that could be approved by provinces totaling 80% of the population.[note 1]
After the proposal was aired, Ontario and New Brunswick announced their support. The Federal NDP under Ed Broadbent announced its support after persuading Trudeau to devolve some resource powers to the provinces in exchange.  Trudeau's proposal in the House of Commons, which would be tabled as the Canada Bill, invited Aboriginal, feminist, and other groups to Ottawa for their input on the proposed Charter in legislative committees.
British Columbia, Alberta, Manitoba, Quebec, Prince Edward Island, and Newfoundland declared opposition to the proposal, and announced their intention to oppose the Canada Bill if it were brought to Westminster. The Premiers were referred to in the press as the "Gang of Six.[note 2]" Manitoba, Newfoundland, and Quebec launched references to their respective Courts of Appeal asking if the Canada Bill was Constitutional. Nova Scotia and Saskatchewan remained neutral.
Lévesque brought a motion to the National Assembly condemning the Canada Bill. While the Liberal leader Claude Ryan disagreed with Trudeau's unilateral maneuver, a good deal of his caucus was in favour, and he himself supported most of the proposed reforms. Negotiations for a unanimous motion of the National Assembly failed, despite negotiations that saw Lévesque conceding a mention of the "Yes" referendum victory in the preamble and publicly "begging" Ryan to agree. Lévesque, enraged, called for an election. The PQ, instead of campaigning for sovereignty-association, campaignined against Trudeau's proposal. The PQ would win the 1981 election with 49% of the vote to Ryan's Liberals 46%, ensuring Lévesque would remain at the negotiating table.
"Gang of Six" Becomes the "Gang of Eight"
At the insistence of British Columbia, the "Gang" created an alternative proposal to showcase the disagreement between the sides and to counter the Federal government's charges of obstructionism if the document were to proceed to Westminster.
The proposal was for patriation to take place with no Charter of Rights. The proposed amending formula permitted amendment with the approval of 7 provinces consisting of 50% of the population, referred to as the "Vancouver Formula." The Premiers' new innovation was a clause allowing for dissenting provinces to "opt out" of new amendments that superseded provincial jurisdiction and receive compensation from the Federal government to run a substitute program if 2/3 of the members provincial legislature acquiesced. Nova Scotia and Saskatchewan approved of this proposal, prompting the press to now refer to the opposition Premiers as the "Gang of Eight."
Lévesque, returning to a conference a number of days after his election campaign, held out final approval regarding "opting out," saying that it would place too much power in the opposition of the provincial legislature. After an all night negotiation session the day before signing, the Premiers ultimately agreed to Lévesque's amendment, but as a compromise, he would have to appear at a press conference and sign a statement that would appear nationwide in newspapers, featuring a conspicuous Canadian flag.
Trudeau rejected the proposed document out of hand, calling the proposal for compensation akin to sovereignty association.
"Gang of Six" Becomes the "Gang of Eight"
Soon, the References began to be heard. Manitoba and Quebec's Courts of Appeal backed the Federal government's position that patriation could occur without provincial consent. Newfoundland's Court of Appeal found 2-1 in favour of the provinces.
The split decisions created tension in Westminster, as the legality of Trudeau's measure was now an open question. The Federal government opted to refer the decision to the Supreme Court of Canada.
At the Federal level, all three parties came to an agreement to adjourn debate on the Canada Bill and the resulting filibuster pending the decision. (Russell, 119)
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 seven to two in favour). However, by a different six-to-three majority, the court said that the constitution was made up as much of convention as written law and ruled that unilateral patriation was not in accordance with constitutional convention. The Court's decision stated that agreement by a "substantial" number of premiers would be required to abide by the convention. This number was not defined and commentators later criticized the court's failure to rule that the approval of all provinces was required.
The decision was a technical win for the Federal government, with Chrétien and Trudeau stating that it had finally validated the Federal process as legal. However, the withering tone of the decision, which stated that Trudeau's initiative would effectively create a new federation, created pressure on Trudeau's coalition partners: Both Ontario and the Federal NDP predicated their future support of the initiative in London on another conference being held.
Thatcher's government communicated that, while the government would support any patriation request pursuant to their prior undertakings, they could not guarantee passage in the House of Commons, where provincial and aboriginal lobbying had succeeded in creating some minor publicity on the issue amongst backbench Conservative and Labour MPs.
Both the United Kingdom and Canada undertook contingency preparations: Thatcher's government explored simply unilaterally patriating the constitution to Canada with an amending formula requiring unanimous approval of the provinces. Trudeau began to plan for a referendum proposing a unilateral declaration of independence and the declaration of a Republic of Canada in the event of a United Kingdom refusal.
The November, 1981 Conference
The decision set the stage for a meeting amongst all premiers and Trudeau in Ottawa, which convened on November 2, 1981. The meeting opened with Trudeau announcing an openness to a new amending formula, Ontario announcing that they could accept an agreement without an Ontario veto, and New Brunswick proposing deferral of some elements of a Charter. This was seen as a general opening toward the provincial proposal, though Trudeau declared a Charter would not be negotiable.
The first two days saw little headway on negotiations and a sustained argument between Lévesque and Trudeau on the language provisions of the Charter. A compromise proposed to Trudeau involving amending the Group of Eight's proposal with a limited Charter was met with a blunt refusal, with Federal officials declining a "gutted Charter."
On November 3, the Gang of Eight's breakfast meeting saw two new proposals floated: Saskatchwan would propose a Charter without language rights, amendment by any seven provinces regardless of population and the removal of financial compensation. British Columbia would propose to allow Trudeau his language rights provisions for other considerations. Lyon and Lévesque were angered and refused to go along, with Lougheed successfully suggesting the ideas be proposed to test Trudeau's negotiating position.
Trudeau launched a new Federal initiative to the Premiers on November 3: to patriate the constitution as it was, but continue debates for two years and, if deadlock resulted, to have a referendum on the amending formula and on the Charter. Lévesque, fearing that the alliance was crumbling, confident he could defeat a Charter in a referendum, and facing mocking remarks by Trudeau that as a "great democrat" he could hardly refuse such a proposal, agreed in principle. Trudeau promptly announced a "Canada-Quebec alliance" on the issue to the press, stating that "the cat is among the pigeons."
The English Premiers were horrified: Campaigning against the protection of "rights" was generally seen as political suicide, and a national referendum could be seen as "conventionalizing" the Charter without the need for provincial approval. The draft text of the Federal proposal was later revealed to involve the approval of Trudeau's reforms, with referendums being only if provinces representing 80% of the population demanded them within the two years. This prompted Lévesque to back away from the referendum proposal, saying it looked as though it was "written in Chinese."
The conference descended again into acrimony, with Trudeau and Lévesque clashing over language rights. Trudeau announced that he would hear one final meeting at 9am the following day, and head to Westminster if the agreement were not solved. Newfoundland announced a proposal would be forwarded the next day.
The Kitchen Accord
Immediately after the meeting of November 3, 1981, Chrétien met with Attorney General of Saskatchewan Roy Romanow and Attorney General of Ontario Roy McMurtry in the kitchen of Ottawa's Government Conference Centre. The premiers discussed a modified version of the "straight swap" : The provinces would agree to the Charter and not allowing opting-out with compensation, while Chrétien agreed to the Vancouver amending formula and to include the Notwithstanding Clause in the Charter. Chrétien, who had been in the front lines of the Quebec referendum and was abhorred at the possibility of another one, recommended the compromise to Trudeau. Trudeau felt that, given the previous chaos, an agreement would be impossible with the other provinces and demurred.
Hatfield and Davis, advised of the talks, agreed in principle, with the latter phoning Trudeau and informing him that they would not side with Trudeau if he proceeded unilaterally at this point. Trudeau, who knew that his position in London was growing tenuous even with the support he had, accepted what the basis of what would be called the Kitchen Accord.
Working with the similar draft proposal created by the Newfoundland delegation, the provinces worked through the night to prepare the compromise proposal. As the Quebec delegation was headquartered in Hull, Quebec, Lévesque and his people remained ignorant of the agreement.
Lévesque was advised at breakfast the following morning of the Agreement. He refused to accept the compromise, believing that the removal of compensation for "opting out" had been in defiance of his stated positions. He had to be convinced to stay at the conference. The proposal was read aloud by Newfoundland's delegation, which to the surprise of many in the conference room, was accepted wholeheartedly by Trudeau as an agreement in principle.
The government of Quebec announced on November 25, 1981 that it would veto the decision pursuant to its traditional veto on constitutional matters. However, both the Quebec Court of Appeal and the Supreme Court, which issued its ruling on the matter on December 6, 1982, stated that Quebec had never held such veto powers.
Trudeau, in an attempt to include the concerns of Quebec's provincial government, consulted with opposition leader Claude Ryan. This resulted in opting-out to be permitted for amendments to language and cultural items, and for limitations to be placed on the educational provisions of the Charter.
The events were very divisive. Quebec nationalists saw the deal as the English-speaking premiers betraying Quebec, which prompted use of the term 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.
With the agreement of the majority of provincial governments, the Canada Act 1982 was also formally approved by the governments of the United Kingdom and Canada. In a joint address in the Canadian parliament, Queen Elizabeth II was asked to amend the constitution and she, as Queen of the United Kingdom, granted Royal Assent to the Canada Act on March 29, 1982, 115 years to the day since Queen Victoria gave assent to the British North America Act 1867.
Elizabeth II then, as Queen of Canada, proclaimed the patriated constitution in Ottawa on April 17, 1982. On the royal proclamation parchment were spaces for the signatures of the Queen, Trudeau, and the Registrar General of Canada; at the signing ceremony, however, Trudeau offered Chrétien an opportunity to also place his name on the document. The pen's nib had, by that point, been broken, leading Chrétien to utter under his breath "merde!" (French for "shit"), which the Queen overheard and laughed at. The broken pen caused a smudge at the end of Chrétien's signature. The desk upon which the proclamation was signed (known as the Constitution Table) resides in the office of the Speaker of the Senate of Canada.
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 conveyed to journalists her regret that the province was not part of the settlement.
As constitutional scholar Robin White has noted, some might think that, since the Canada Act 1982 is British as well as Canadian law, the United Kingdom could theoretically repeal it and declare its laws to be binding in Canada. Peter Hogg, however, disputes this view, noting that since Canada is now sovereign, the Supreme Court of Canada would find a British law which purported to be binding in Canada 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."
- It should be noted that 80% of the population would, by necessity, require Ontario's and Quebec's approval.
- Compare Gang of Four.
- Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, p. 55.
- House of Commons Debates (Hansard), 373/2 (28 Jan. 1966). Documented as earliest known use in the Oxford English Dictionary, entry patriate.
- Whyte, John (26 October 2012), "Rejection of Charlottetown accord ended era of constitutional reform", Toronto Star, retrieved 26 October 2012
- Fraser, p. 173.
- Fraser, p. 174.
- Fraser, p. 179.
- Trudeau (1993), p. 306.
- Bastien, p. 102.
- Trudeau (1993), p. 309.
- Trudeau (1993), p. 310.
<ref>tag; no text was provided for refs named
Cite error: Invalid
- Russell, Peter H. et al. (December 1982). The Courts and the Constitution. Kingston: Institute of Intergovernmental Relations. ISBN 978-0-88911-035-9.
- Forsey, Eugene (1984). "The Courts and the Conventions of the Constitution". University of New Brunswick Law Journal (Fredericton: University of New Brunswick Press) (33): 11.
- Bastien, p. 286-8.
- Bastien, p. 283-6.
- Bastien, p. 290.
- Bastien, p. 291.
- Fraser, p. 294.
- Bastien, p. 292.
- Fraser, p. 295.
- Fraser, p. 296.
- Bastien, p. 294.
- Bastien, p. 295.
- Bastien, p. 296.
- Leeson, Howard (2011). The Patriation Minutes. Edmonton: Centre For Constitutional Studies. p. 112. ISBN 978-0986936500.
- Leeson 2011, pp. 59–60
- Russell, Peter H. (2011). "The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution". Supreme Court Law Review (Ottawa: LexisNexis Canada Inc.): 75–76. ISSN 0228-0108. Retrieved 5 March 2012.
- Pierre Trudeau, in his essay on the Quebec referendum, regarding the curious and distasteful use of this description, remarked: "The 'Night' in question is of course that of the so-called "Long Knives," a label shamelessly borrowed from Nazi history by separatists suffering from acute paranoia." Originally published in the Montreal Gazette, Feb 3, 1996.
- Lederman, William (1983), "The Supreme Court of Canada and Basic Constitutional Amendment", in Banting, Keith G.; Simeon, Richard, And no one cheered: federalism, democracy, and the Constitution Act, Toronto: Taylor & Francis, p. 177, ISBN 978-0-458-95950-1, retrieved June 12, 2010
- Delacourt, Susan (May 25, 2012), "When the Queen is your boss", Toronto Star, retrieved May 27, 2012
- Kinsella, Noël (May 25, 2010). "Speaking Notes of the Honourable Noël A. Kinsella, Speaker of the Senate, on the Occasion of the Unveiling of the Portrait of the Right Honourable Jean Chrétien" (PDF). Queen's Printer for Canada. Retrieved February 23, 2012.
- The Canadian Royal Heritage Trust: Elizabeth II, Queen of Canada[dead link]
- Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, p. 58.
- Romney 1999, p. 272
- Bastien, Frédéric Bastien (2013). The Battle of London: Trudeau, Thatcher, and the Fight for Canada's Constitution. Toronto: Dundurn. ISBN 9781459723290.
- English, John (2009). Just Watch Me: The Life of Pierre Elliott Trudeau Volume Two: 1968–2000. Toronto: Knopf Canada. ISBN 978-0-676-97523-9.
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