11.2 Constitutional Negotiations and Patriation

The Trudeau era saw intense constitutional debates, culminating in the patriation of Canada's Constitution. This process aimed to bring the Constitution fully under Canadian control, ending the need for British involvement in amendments.

The Constitution Act, 1982 was the result of these efforts. It included the Charter of Rights and Freedoms, recognized Aboriginal rights, and established an amending formula. However, Quebec's refusal to sign led to ongoing tensions in Canadian federalism.

Patriation and the Constitution Act, 1982

The Process of Patriation

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  The making of a deal: Trudeau, patriation and the Charter View original

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  Pierre Trudeau and the Queen signing the Consitution Act - Policy Options View original

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  Justin Trudeau and “reconciliatory federalism” View original

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  The making of a deal: Trudeau, patriation and the Charter View original

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Top images from around the web for The Process of Patriation

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  The making of a deal: Trudeau, patriation and the Charter View original

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• 

  Pierre Trudeau and the Queen signing the Consitution Act - Policy Options View original

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• 

  Justin Trudeau and “reconciliatory federalism” View original

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  The making of a deal: Trudeau, patriation and the Charter View original

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  Pierre Trudeau and the Queen signing the Consitution Act - Policy Options View original

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• Patriation refers to the process of bringing the Constitution of Canada fully under Canadian control
• Prior to 1982, the British North America Act, 1867 (later renamed the Constitution Act, 1867) served as Canada's constitution but could only be amended by the British Parliament
• Prime Minister Pierre Trudeau sought to patriate the constitution, allowing Canada to amend its own constitution without British involvement
• Patriation required the consent of the federal government and a substantial number of provinces

The Constitution Act, 1982

• The Constitution Act, 1982 resulted from the successful patriation of the Canadian Constitution
• Includes the Canadian Charter of Rights and Freedoms, which guarantees various civil and political rights for Canadians (freedom of expression, right to life, liberty, and security of the person)
• Outlines the procedure for amending the Constitution, requiring the consent of the federal government and a specified number of provinces depending on the nature of the amendment
• Recognizes and affirms Aboriginal and treaty rights

Impact on Canadian Federalism

• Patriation and the Constitution Act, 1982 significantly altered the dynamics of Canadian federalism
• The Charter of Rights and Freedoms placed limits on both federal and provincial governments, as laws could now be challenged on the basis of Charter rights
• The amending formula outlined in the Constitution Act, 1982 gave provinces a formal role in constitutional amendments, enhancing their power relative to the federal government
• Quebec did not formally consent to the Constitution Act, 1982, leading to ongoing tensions in federal-provincial relations (Quebec's distinct status, demands for recognition as a nation within Canada)

Failed Negotiations and Agreements

The Victoria Charter, 1971

• The Victoria Charter was a proposed package of constitutional amendments negotiated by the federal and provincial governments in 1971
• Included a formula for amending the Constitution in Canada, provisions for the appointment of Supreme Court judges, and the entrenchment of language rights
• Failed to gain the necessary support from Quebec, as then-Premier Robert Bourassa withdrew his support due to concerns over the amending formula and jurisdiction over social policy

The Kitchen Accord, 1981

• The Kitchen Accord was a failed attempt to reach a compromise on constitutional patriation between the federal government and eight dissenting provinces (all except Ontario and New Brunswick)
• Negotiated in the kitchen of the Ottawa Convention Centre during a First Ministers' Conference in November 1981
• Proposed a more decentralized amending formula that would have given each province a veto over certain types of constitutional amendments
• Ultimately rejected by Prime Minister Trudeau, who proceeded with patriation without the full consent of the provinces

Key Issues and Compromises

The Quebec Veto

• During constitutional negotiations, Quebec sought a veto over constitutional amendments to protect its distinct status and autonomy within the Canadian federation
• The Victoria Charter included a provision for a Quebec veto, but the charter ultimately failed to gain Quebec's support
• The Constitution Act, 1982 did not include a Quebec veto, contributing to Quebec's refusal to formally endorse the patriated constitution

The Night of the Long Knives, 1981

• Refers to the night of November 4-5, 1981, during constitutional negotiations in Ottawa
• After the failure of the Kitchen Accord, the federal government and nine provinces (excluding Quebec) reached a compromise on patriation and the amending formula
• Quebec Premier René Lévesque felt betrayed by the other provinces, particularly by the reversal of the Gang of Eight (provinces opposed to Trudeau's patriation plan)
• The incident heightened tensions between Quebec and the rest of Canada and contributed to Quebec's sense of isolation within the federation

The Notwithstanding Clause (Section 33)

• The notwithstanding clause allows the federal parliament or provincial legislatures to override certain sections of the Charter of Rights and Freedoms for a five-year period
• Included as a compromise to secure provincial support for the Constitution Act, 1982, particularly from provinces concerned about the Charter's impact on their legislative autonomy (Saskatchewan, Alberta)
• The clause has been rarely used, with notable instances being Quebec's use to protect its language laws and Saskatchewan's use to protect back-to-work legislation