Former politician and honourary Cree Chief Elijah Harper, 2008

Constitution as a living tree

Constitution as a living tree



No one was completely satisfied with the final deal. Many interests were ignored, and many compromises were made. But patriating the Constitution to Canada and adding a Charter of Rights and Freedoms to it in 1982 were monumental achievements.

The Constitution Act, 1982 transformed Canada. A significant colonial link to Great Britain was cut. The new Charter of Rights and Freedoms The Charter sets out the rights and freedoms that are officially guaranteed by the Canadian Constitution, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is Part 1, sections 1-34 of the Constitution Act, 1982.  forever changed the relationships between citizens, courts, legislatures, and Parliament. The Constitution is a living tree that is now planted on Canadian soil.

Roy Romanow, Minister of Intergovernmental Affairs for Saskatchewan (1979-1982)
Hugo Cyr, Dean, Faculty of Political Science and Law, Université du Québec à Montréal

Living tree

Many Canadians felt there was unfinished business after 1982 because Québec had not signed the final deal, Indigenous Peoples had not achieved many of the rights they claimed as inherent, the provinces had not successfully renegotiated the division of powers between the federal and provincial governments, and there had not been meaningful reform of government institutions such as the Senate The “upper house” of the Canadian Parliament, which reviews and approves all federal legislation initiated in either House. (It does not usually initiate legislation, although it has that power.) The Senate is comprised of 105 senators, who are appointed until the age of 75 by the Governor General on the advice of the Prime Minister. Senate seats are proportioned by region, in an attempt to balance the population-based membership of the House of Commons and improve regional equality in government.  and the Supreme Court of Canada. 

There were unsuccessful attempts to address many of these issues in the 80s and 90s, notably through the Meech Lake and Charlottetown Accords An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated.  and the Royal Commission on Aboriginal Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous. Peoples.  

Québec not signing the Constitution dominated Canadian politics for more than a decade, but legally, Québec is included in the constitutional order. Québecers continue to use the Constitution to assert their rights.

Lévesque holds up the constitutional accord that was signed without him, November 11, 1981
Peter Lougheed, Premier of Alberta (1971-1985)
03_george_manuel_street_protest_ce_668_0001_UBCIC.jpg Constitution Express participants, 1980

Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  Peoples sought and continue to seek recognition of their status and identity as distinct nations of peoples within Canada. Section 35, the section on Aboriginal and Treaty Rights, was amended and expanded in 1983 following negotiations between Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  Peoples and the federal and provincial governments.  Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  Peoples have used the section through the courts to give life to many of their existing rights and laws, but they are a long way from acquiring the full recognition they seek. Today the fractured relationship with Indigenous Peoples is perhaps Canada’s largest political challenge.

04_western_premiers_conference_17745670_CP.jpg The Western Premiers Conference, Manitoba, 1981

Thanks to the patriation of the Constitution, it can now be amended in Canada. Though some see the prospect of amendment as an impossibility because of the failed Meech Lake A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec.  and Charlottetown Accords An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated.  , it was in fact amended 11 times between 1982 and 2017. An important amendment to the Constitution that affected the Inuit Peoples of Canada was the creation of Nunavut in 1999 as Canada’s third and only Indigenous majority territory.

Two Inuit junior rangers unveil the new Nunavut flag during the inaugural event in Iqaluit, Nunavut. April 1, 1999.
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Brian Mulroney and the Premiers, Meech Lake, 1987

1987-1990

The Meech Lake Accord

1987-1990


The Meech Lake Accord


Progressive Conservative Prime Minister Brian Mulroney, elected in 1984 after Pierre Trudeau’s retirement, saw a political opportunity in trying to bring Québec back into a constitutional arrangement they could support.

René Lévesque responded positively. As he said at a Parti Québécois A sovereignist or pro-independence provincial party in Québec, founded in 1968 under the leadership of René Lévesque. The PQ has won several elections and initiated the 1980 and 1995 referenda on Québec’s place in Confederation.  meeting on September 22, 1984, “Obviously, there is an element of risk. But it is a beau risque, and we don’t have the luxury of not taking it.”

On April 30, 1987, the Meech Lake Accord A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec.  was signed by Mulroney and all 10 provincial premiers of the day, (including Robert Bourassa, the Liberal leader from Québec), who met on their own for one day at Wilson House by Meech Lake in the Gatineau Hills, Québec.   

It represented a significant evolution of powers from Ottawa The capital city of Canada, where the federal Parliament buildings, the House of Commons and the Senate are located. For this reason, “Ottawa” is sometimes used as a synonym for the federal government, as in a phrase such as, “Ottawa refused any further negotiations.”  to the provinces, including provincial nominations of senators and Supreme Court justices, increased provincial control of immigration, and wider options for provinces to opt out of federal programs (with financial compensation).

The Accord also recognized Québec as a “distinct society” and affirmed the role of the Québec government in preserving and promoting Québec’s distinct identity. This could have had a big impact on future court interpretations of constitutional cases involving Québec.

Gil Remillard uses a board to explain Québec's distinct character during a parliamentary commission on Meech Lake accord, May 12, 1987, while Quebec Premier Robert Bourassa listens.
02_trudeau_1988_meech_lake_741567_CP.jpg Former Prime Minister Pierre Trudeau, 1988

But Pierre Trudeau spoke out and helped turn public opinion against Meech, especially in English Canada. He argued that the distinct society clause would make for two separate constitutions and two charters, making Canadian unity impossible.

He argued that the distinct society clause would make for two separate constitutions and two charters, making Canadian unity impossible.

Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  leaders, having been excluded from the negotiations, argued against Meech and the exclusionary vision of Canadian constitutionalism that it presented, with its French-English, two-nation conception of constitutional nationalism.

Indigenous leaders, having been excluded from the negotiations, argued against Meech and the exclusionary vision of Canadian constitutionalism that it presented, with its French-English, two-nation conception of constitutional nationalism.

Manitoba MLA Elijah Harper leads about 1,000 natives in a march in support of Quebec Mohawks in Winnipeg, July 22, 1990.

Meanwhile, 70 per cent of Canadians said they wanted their say on the Accord in a referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues.  . Trudeau’s notion that constitutional amendments ought to be directly submitted to the will of the people was gaining ground.

The amending formula The rules for changing the Constitution. Most parts of the Constitution require the agreement of the Senate and House of Commons, and at least two-thirds of the provinces representing 50% of the population for an amendment. adopted in 1981 set a three-year deadline for all legislatures to pass portions of a package like the Meech Lake Accord A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec.  . On the verge of the three-year deadline, only eight of ten provinces had approved it.

04_elijah_harper_filibuster_935630_CP.jpg NDP MLA Elijah Harper (centre) refused to give his consent to allow the Manitoba legislature to proceed with debate on the Meech Lake accord in Winnipeg, June 12, 1990

In Manitoba, a legislative procedural technicality allowed Cree MLA Elijah Harper to stop the Accord from passing in the legislature — famously rising from his seat holding an eagle feather — effectively killing it at the final hour. (Days later, Newfoundland premier Clyde Wells refused to put the Accord to a vote in the House of Assembly in his province.)

Harper’s stand became a powerful symbol of resistance, helping to raise awareness of Indigenous issues across Canada.

Harper’s stand became a powerful symbol of resistance, helping to raise awareness of Indigenous issues across Canada. When Mulroney was publicly reported to call Harper “stupid” for his blocking of the Meech Accord A set of proposed changes to the Constitution agreed upon by the first ministers at a meeting called by Prime Minister Brian Mulroney and held at Meech Lake in Gatineau, Québec, in April, 1987. It was an effort to gain the endorsement of Québec to the Constitution that was lacking earlier in the decade. Measures included naming Québec a “distinct society” in the Constitution, and altering the amending formula to give Québec more power with respect to any proposed changes. Pierre Trudeau came out in opposition, as did Indigenous groups and others who were angry about a lack of consultation. Ultimately, it was not approved by all provinces in time to meet the agreed deadline - it expired on June 23, 1990, which was perceived as another betrayal by many in Québec.  , Harper responded, “I was listening to the people…. When he says I'm stupid, he calls our people stupid. We're not stupid. We're the First Nations people. We're the very people who welcomed his ancestors to this country, and he didn't want to recognize us in the Constitution."

Manitoba MLA Elijah Harper salutes supporters from the steps of the legislature in Winnipeg, June 22, 1990
06_lucien_bouchard_872652_CP.jpg Lucien Bouchard at an election victory rally in Québec, October 25, 1993
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Prime Minister Brian Mulroney, 1992

1992

The Charlottetown Accord

1992


The Charlottetown Accord


In 1992, Mulroney and 10 premiers gathered in Prince Edward Island and signed yet another constitutional agreement, the Charlottetown Accord.

Charlottetown was deemed acceptable by most Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  leaders. They had included constitutional recognition of the inherent right to self-government, the development of a Métis Accord, land rights, and a commitment for a biannual First Ministers Conferences on Aboriginal Aboriginal is the collective term used in the Constitution to describe the original peoples of North America and their descendants and includes First Nations, Inuit, and Métis. See also: Indigenous. issues in order to move towards the implementation of treaties. Many Indigenous leaders recommended acceptance of the Charlottetown Accord An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated.  .

But many grassroots community members felt these achievements were too limited, and chastised their leaders for “selling out” and agreeing to the continuation of colonialism rather than establishing a new relationship based on respect and mutual recognition. The majority of Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  Peoples voted against the Accord in the 1992 referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues.  .

01_accord_vote_2108147_CP.jpg Residents of Deux-Montagnes line up in front of a Charlottetown Accord polling station, October 26, 1992

So did most of the rest of the country. The Charlottetown Accord An attempt, in 1992, to revise the Constitution to gain the endorsement of Québec, after the death of the Meech Lake Accord in 1990. Along with several of the provisions of Meech, it had a “Canada Clause” setting out a general view of the nation (including Québec as a “distinct society”), as well as a Social Charter, meant to articulate collective principles and goals not included in the Charter of Rights and Freedoms (on health care, education, labour rights and other matters), and a recognition of the Indigenous right to self-government. It was brought to public referendum — one in Québec and another in the rest of Canada — on October 26, 1992, and was defeated.  was defeated on October 26, 1992, with 54 per cent of the national population voting against it. Many observers, including Trudeau (who again opposed the deal), read it as a revolt of the Canadian people against the political class. Others saw it as nothing more than a poll on the leadership of Prime Minister Mulroney, who was nearing the end of his time in office and whose approval ratings had slipped to historic lows.

In the 1993 election, Bouchard led the Bloc Québécois all the way to Official Opposition status.

In the 1993 election, Bouchard led the Bloc Québécois all the way to Official Opposition status.

Lucien Bouchard gives thumbs up to a crowd at an election rally. Québec, October 25, 1993
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Québec Premier Jacques Parizeau during a Yes rally in Montreal, 1995

1995

Separatism Goes Back to the Polls

1995


Separatism Goes Back to the Polls


In 1994, the Parti Québécois regained power under the leadership of Jacques Parizeau, and held another referendum on sovereignty in 1995.

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Chrétien Points At Duceppe, 1999

1995-2000

Finding Clarity

1995-2000


Finding Clarity


Following the 1995 referendum, Chrétien took a harder line against Québec separatism and asked the Supreme Court for a reference on the conditions under which the federal government would be bound to negotiate Québec secession.

In its 1998 Secession Reference, the Court ruled that unilateral secession by Québec was unconstitutional, but that the federal government would be obligated to negotiate terms in good faith in the event of a majority vote in favour of secession.

As a response in 2000, the Chrétien government passed the Clarity Act, which said that no Canadian Parliament would negotiate secession of a province without the approval of a clear majority on a clear question in a referendum A popular vote (whether civic, provincial, or national) on a proposal or question. The patriation of the Constitution became a more urgent matter after the 1980 Québec referendum on sovereignty. Pierre Trudeau and others proposed several different possible national referenda to resolve constitutional issues.  .

Many believe that the Canadian project won’t be completed until Québec has signed on to the Constitution, and until Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  Peoples have achieved complete recognition of their sovereignty [and concrete recognition of Indigenous Indigenous is the collective term for the original peoples of North America and their descendants, and includes First Nations, Inuit, and Métis peoples. See also: Aboriginal, which is found in the Constitution. The Government of Canada has officially changed “Aboriginal” to “Indigenous” in its ministries, legislation and documents. Canada has made it clear that the term “Indigenous” covers the legal definitions of “Aboriginal” and “Indian” for most constitutional purposes.  legal orders within the Canadian constitutional fabric].

A constitution must be flexible enough to meet the changing needs of the time. Many changes can be resolved incrementally without the large scale, political, often fractious, and elite bargaining needed to rewrite or add major sections of the Constitution that happened during the patriation The process of bringing the British North America Act, 1867 – the Constitution of Canada – under full domestic control, rather than having it remain as an act of the British Parliament. After decades of effort, patriation was completed with the 1982 passage of the Canada Act in Britain and the Constitution Act in Canada. It includes a means of amending the Constitution in Canada. The new Constitution was not endorsed by the government of Québec.  process. The Canadian Constitution, patriated in 1982, now includes ways to amend it. There is evidence of the opportunities it can provide, and we should seize them as they arise.

Hugo Cyr, Dean, Faculty of Political Science and Law, Université du Québec à Montréal

The Canadian Constitution, patriated in 1982, now includes ways to amend it. There is evidence of the opportunities it can provide, and we should seize them as they arise.

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Constitution as a living tree

Legacy: an Unfinished Vision

No one was completely satisfied with the final deal. Many interests were ignored, and many compromises were made.

ALIVE AND GROWING

Constitution as a living tree

1987-1990

The Meech Lake Accord

1992

The Charlottetown Accord

1995

Separatism Goes Back to the Polls

1995-2000

Finding Clarity

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