Canada's Constitution Act

Date April 17, 1982

Canada assumed control over its own constitution, ushering in an era of intense debate over the division of powers between the federal and provincial governments and a confrontation between advocates of Quebec’s sovereignty and Canadian nationalists.

Locale Ottawa, Ontario, Canada

Key Figures

• René Lévesque (1922-1987), premier of the province of Quebec, 1976-1985, and leader of the Parti Québécois
• Brian Mulroney (b. 1939), prime minister of Canada, 1984-1993
• Jacques Parizeau (b. 1930), premier of the province of Quebec, 1994-1995
• Pierre Trudeau (1919-2000), prime minister of Canada, 1968-1979 and 1980-1984

Summary of Event

In 1841, English-speaking Upper Canada and French-speaking Lower Canada were joined in a political union, but by the 1860’s, these two culturally distinct groups encountered difficulties in cooperation. A new constitution, established by the United Kingdom’s British North America Act of 1867, brought together French-speaking Quebec and English-speaking Ontario, along with the previously self-governing British colonies of Nova Scotia, New Brunswick, and Prince Edward Island, into a confederation called Canada. This confederation established a decentralized political system, with much of the power retained by the individual provinces.

Following World War II, Canada emerged on the world scene as a significant international power, but its constitution, the basic set of laws by which it was governed, was still in the hands of Great Britain. The patriation of the constitution that is, Canada’s assuming full control over its content and amendment became a national issue.

Quebec’s Liberal premier, Jean Lesage, proposed discussions on patriation and an amending formula at a federal-provincial conference held in Ottawa in July, 1960. Lesage spoke of the need for a special status for Quebec, an arrangement by which the Quebec government would negotiate directly with the federal government for exemption from certain national policies. In addition, Lesage described Quebec as a distinct society within Canada, asking, “What objection would there be if Canada were to adopt a constitutional regime which would take into account the existence of two ’nations’ or ’societies’ within one Canada?” The issues of special status for Quebec and its recognition as a distinct society became the objectives of future Quebec governments, as debate over patriation of the constitution continued for two decades.

In the November 15, 1976, provincial election, the Parti Québécois, which called for a referendum on separation from Canada, was elected to govern Quebec. Parti Québécois leader René Lévesque called for a provincial referendum on sovereignty-association, under which, within its boundaries, Quebec would have exclusive power to make laws, administer taxes, and establish diplomatic relations, but would maintain an economic association with Canada and continue to use the Canadian currency.

Protection of the French language and culture became an important issue in Quebec. On August 26, 1977, the Quebec National Assembly passed Bill 101, which severely restricted the use of languages other than French in Quebec. On December 13, 1979, the Supreme Court of Canada unanimously struck down those provisions of Bill 101 that restricted the use of English in the National Assembly and the courts of Quebec. Quebec voters rejected the sovereignty-association proposal by a margin of 60 to 40 percent, in a provincial referendum held on May 20, 1980.

With the national election of the Liberal Party in February, 1980, the Liberal prime minister, Pierre Trudeau, made constitutional reform and patriation major objectives of the new government. Trudeau promised during the campaign that “we will immediately take action to renew the Constitution and we will not stop until we have done that.” Trudeau’s proposal included new economic powers for the federal government and a broad charter of rights for all Canadians. A four-day meeting of the premiers of the provinces, beginning September 8, 1980, failed to reach agreement on the content of a new constitution.

Prime Minister Trudeau, in a nationally televised address to the Canadian people on October 2, 1980, announced his decision to proceed unilaterally, asking the Canadian parliament to petition the British parliament on the patriation issue. Revisions to the constitution were to be decided after patriation. By October 14, Lévesque and several other premiers had announced their opposition to unilateral action by the federal government on patriation, and court challenges to this federal action were begun in Manitoba, Quebec, and Newfoundland.

Lévesque and the Parti Québécois opposed four major aspects of the federal government’s plan to patriate and reform the constitution. First, they wanted clear agreement on both the division of powers between the federal government and the provinces, and the charter of rights, before patriation. Second, they wanted Quebec to have broad veto power over future changes to the constitution. Third, they insisted on inclusion of an opting-out provision, allowing individual provinces to elect not to participate in certain federally mandated programs. Fourth, they opposed a national charter of rights that might restrict the powers of the provinces. The Supreme Courts of Manitoba and Quebec supported the federal government’s legal right to proceed unilaterally, but Newfoundland’s Supreme Court condemned the federal procedure. On September 28, 1981, the Supreme Court of Canada ruled that unilateral federal action was legal, but that such action violated the standard procedure for constitutional change.

Prime Minister Trudeau called another conference with the premiers at which, on November 5, 1981, they reached agreement on a package including patriation, a modified amending formula, and a weakened Charter of Rights and Freedoms. Quebec and Ontario would no longer have a veto over future constitutional change. The amendment formula required approval by both houses of the federal parliament, plus approval by the legislatures of at least two-thirds of the provinces having at least half of the total population of all the provinces. The new Charter of Rights and Freedoms would include a provision allowing individual provinces to opt out of fundamental freedoms, legal rights, and equality rights mandated under the federal charter. Lévesque asserted Quebec’s right to veto the new agreement, but the Supreme Court of Canada ruled that Quebec had no such right of veto.

In March, 1982, the British parliament, by the Canada Act of 1982, renounced any future legislative role in amending the Canadian constitution after April 17, 1982. On that day, Queen Elizabeth II proclaimed Canada’s new constitution on Parliament Hill in Ottawa. Lévesque charged that his fellow premiers had abandoned Quebec in a time of crisis, and he indicated that Quebec did not agree to the new constitution.

Significance

In April, 1987, the premiers met with Prime Minister Brian Mulroney at Meech Lake, in Ontario, where they drafted an agreement that would have permitted special status for Quebec and acknowledged Quebec as a distinct society within Canada. The Meech Lake Accord also allowed provinces to opt out of certain federal shared-cost programs and gave the provinces increased control over immigration. Some Canadians opposed Quebec’s becoming “more equal” than the other provinces, having powers not granted to the other provinces. The Meech Lake Accord required unanimous approval of the ten provincial governments. The National Assembly of Quebec accepted the Meech Lake Accord on June 23, 1987, but its adoption was blocked by the opposition of the legislatures in Manitoba and New Brunswick. Canada’s failure to come to terms with Quebec resulted in increased tension between the federal and Quebec provincial governments.

A second attempt to meet Quebec’s demands was drafted by the premiers in Charlottetown, Prince Edward Island, in 1992. The Charlottetown Accord recognized Quebec as a distinct society with a unique civil law system; provided for an elected Senate, a demand of the western provinces; and permitted individual provinces to negotiate directly with the federal government for increased control over immigration and regional development. The Charlottetown Accord was rejected in a national referendum on October 26, 1992. The leader of the Parti Québécois, Jacques Parizeau, responded the next day, saying, “It is clear that between Quebec and Canada there is not only a lasting misunderstanding, but a solution is hopeless.”

The Parti Québécois was returned to power in the Quebec provincial elections on September 12, 1994, and the new premier, Jacques Parizeau, called for a second vote on separation from Canada. The sovereignist forces were defeated by a narrow margin of about 1 percent of the ballots cast in the fall, 1995, Quebec referendum, but Parizeau promised that the fight for separation was not over.

Bibliography

Banting, Keith, and Richard Simeon, eds. And No One Cheered: Federalism, Democracy, and the Constitution Act. Toronto: Methuen, 1983. Seventeen essays by Canadian scholars on the struggle over constitutional reform and what patriation of the constitution is likely to mean for Canada’s future.

Gagnon, Alain. Quebec: Beyond the Quiet Revolution. Scarborough, Ont.: Nelson Canada, 1989. Includes an in-depth account of the Quebec perspective on the debate over the Canadian constitution.

Green, Ian. The Charter of Rights. Toronto: James Lorimer, 1989. A comprehensive discussion of the Charter of Rights and Freedoms, with chapters focusing on legal rights, equality, and language rights.

McWhinney, Edward. Canada and the Constitution, 1979-1982. Toronto: University of Toronto Press, 1982. An in-depth account of the meetings, court rulings, and deals that shaped the 1982 constitution. Written by a professor of law.

Sheppard, Robert, and Michael Valpy. The National Deal: The Fight for a Canadian Constitution. Toronto: Fleet Books, 1982. A comprehensive history of the constitutional debate in Canada.

Valpy, Michael, and Deborah Coyne. To Match a Dream: A Practical Guide to Canada’s Constitution. Toronto: McClelland & Stewart, 1998. An easy-to-read guide to Canada’s constitution and history.