1982 patriation of the Constitution

1982 patriation of the Constitution
Name	1982 patriation of the Constitution
Caption	Proclamation of the Constitution Act, 1982
Date	1982
Location	Ottawa, Toronto, Quebec City, Winnipeg, Vancouver
Outcome	Patriation of the Canadian Constitution; enactment of the Constitution Act, 1982 and Canadian Charter of Rights and Freedoms

1982 patriation of the Constitution The 1982 patriation of the Constitution marked the transfer of full constitutional authority to Canada through the enactment of the Constitution Act, 1982 and the embedding of the Canadian Charter of Rights and Freedoms, concluding a process involving federal leaders, provincial premiers, judicial review, and public debate. The episode involved key figures such as Pierre Trudeau, René Lévesque, and Brian Mulroney and institutions including the Supreme Court of Canada, the British Parliament, and the Privy Council of the United Kingdom. It reshaped Canadian federalism, rights protection, and indigenous constitutional recognition and generated enduring disputes over consent, amendment formulas, and the role of Québec.

Background

In the decades preceding 1982, constitutional discussion in Canada intersected with events like the Quiet Revolution, the Victoria Charter, the 1969 Official Languages Act, and the 1971 Multiculturalism Policy and involved leaders such as John Diefenbaker, Lester B. Pearson, Jean Chrétien, and Robert Bourassa. Debates referenced historical instruments including the British North America Acts, the Statute of Westminster 1931, and the Act of Union 1840, and consequences of episodes like the October Crisis and the FLQ influenced nationalist and civil liberties considerations. Jurists from the Supreme Court of Canada, academics at the University of Toronto, McGill University, and Queen's University, and activists from organizations like the Native Council of Canada and the Canadian Civil Liberties Association shaped public understanding of patriation and Charter rights.

Negotiation and Agreement

The negotiation phase culminated in meetings among federal Prime Minister Pierre Trudeau and provincial premiers including Bill Davis, Allan Blakeney, Peter Lougheed, René Lévesque, David Peterson, and Robert Bourassa resulting in the Kitchen Accord and the Patriation Reference controversies. Negotiations drew on precedent from the Fulton-Flores Report and consultations with figures such as Jean Chrétien, E. Davie Fulton, Roy McMurtry, and Jean Lesage. Alternative proposals from delegations including representatives from Ontario, Alberta, Saskatchewan, Manitoba, British Columbia, Newfoundland and Labrador, Prince Edward Island, and Nova Scotia were weighed alongside submissions from indigenous leaders like Harold Cardinal and the Assembly of First Nations. International observers compared the process to constitutional developments in Australia, New Zealand, and the United Kingdom.

Constitutional Act and Charter of Rights

The resulting Constitution Act, 1982 incorporated the Canadian Charter of Rights and Freedoms, an entrenched bill of rights influenced by comparative jurisprudence from the European Convention on Human Rights, the United States Bill of Rights, and the Charter of Fundamental Rights of the European Union discussions. The Act introduced amendment formulas—unanimous consent and the general amending formula—drawing on proposals from legal scholars at Osgoode Hall Law School, McGill University Faculty of Law, and the University of British Columbia. Prominent political actors in drafting included Pierre Trudeau, Jean Chrétien, and provincial attorneys general such as Roy McMurtry and Lyonel Trouillot. The Charter's sections on fundamental freedoms, legal rights, equality rights, and mobility were subsequently litigated before the Supreme Court of Canada and debated in legislatures like the Legislative Assembly of Ontario and the National Assembly of Québec.

Provincial Reactions and Manitoba Reference

Provincial reactions varied: Québec under René Lévesque refused to assent, citing concerns echoed by figures like Claude Ryan and institutions such as the Parti Québécois, while provinces like Ontario and Saskatchewan supported patriation. The Manitoba Reference and related litigation—entered by governments and interveners including the Attorney General of Manitoba and the Attorney General of Saskatchewan—asked the Supreme Court of Canada to determine whether unilateral federal action was lawful under constitutional convention; the Court’s decision influenced strategies used by premiers such as Allan Blakeney and Bill Davis. Political parties including the Progressive Conservative Party of Canada, the Liberal Party of Canada, and the New Democratic Party articulated competing positions during provincial legislatures’ votes.

Implementation and Legal Effects

Implementation required royal assent from the Queen Elizabeth II in a proclamation signed by the Governor General of Canada and countersignatures from federal and provincial officials, formalizing the transfer previously mediated by the British Parliament and the Privy Council Office. Legal effects were immediate: the Canadian Charter of Rights and Freedoms became a central norm adjudicated by the Supreme Court of Canada, affecting cases involving the Canadian Human Rights Commission, provincial courts like the Court of Appeal for Ontario, and federal courts including the Federal Court of Canada. Subsequent jurisprudence addressed issues raised by litigants such as R. v. Oakes, R. v. Morgentaler, and Reference Re Secession of Quebec, engaging actors like Beverley McLachlin and Antonio Lamer as judges.

Political and Social Impact

Politically, patriation reshaped federal-provincial relations among premiers like Peter Lougheed and leaders such as Brian Mulroney and Kim Campbell, influencing constitutional politics during events like the Meech Lake Accord and the Charlottetown Accord. Socially, the Charter transformed advocacy by organizations including the Canadian Civil Liberties Association, Amnesty International Canada, Canadian Bar Association, and indigenous groups like the Assembly of First Nations, affecting public policy debates on health care institutions such as Health Canada and education systems in provinces like Alberta and Québec. Media outlets including the Globe and Mail, Toronto Star, and CBC amplified debates, while academics from York University and Dalhousie University produced influential commentary.

Legacy and Ongoing Debates

The legacy of patriation encompasses entrenched rights protection, an amendment framework, and unresolved constitutional questions about consent, indigenous title, and Québec’s role, debated by contemporary figures including Justin Trudeau, Stephen Harper, and Jagmeet Singh. Ongoing debates concern the applicability of the Charter to indigenous governance claimed by leaders from the Assembly of First Nations and the Inuit Tapiriit Kanatami, the interpretation of section 35 aboriginal rights jurisprudence in cases like Delgamuukw v British Columbia, and proposals for reform debated in forums involving the Council of the Federation and the Canadian Bar Association. Academic and political discussion continues in venues such as the Royal Society of Canada and the Canadian Judicial Council, ensuring that the 1982 settlement remains a living subject in Canadian constitutional life.

Category:Constitution of Canada