Patriation is a non-legal term used in Canada to describe a process of constitutional 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.[1] 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."[2]
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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. 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.
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.
Patriation was given a new impetus after the 1980 Quebec referendum, 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.[3] 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."[3] But the judges across the country were not unanimous in their conclusions on the matter.[4] 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.[5] Still, the case went to the Supreme Court of Canada.
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.[4] This number was not defined and commentators later criticised the court's failure to rule that the approval of all provinces was required.[4][6][7]
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 decision set the stage for a meeting amongst all premiers and Trudeau in Ottawa, 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.
That night — November 4, 1981 — the Minister of Justice, 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").[8] 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, the sovereign was asked for an amendment to the constitution.[9] 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.[10] 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."[11]
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 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."[12] 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."[13]
The Wiktionary entry for patriation