Queen Elizabeth reads the Throne Speech in Parliament, Ottawa, 1977

Supreme Law: An Introduction

Why the Canadian Constitution and its story matter

Canada’s Constitution is its supreme law. It sets the rules for how we govern ourselves. How this supreme law was brought home from Britain is one of Canada’s great stories - full of melodrama and intrigue.

The shaping of the Canadian Constitution, the country’s “supreme law,” stretches back centuries. Indigenous, French, and British laws provided the bedrock for its creation. But the Constitution, passed in 1867, was a British law, which meant that any change to it needed to be approved by the British Parliament. Canadians wanted to patriate the Constitution, bringing it home and fully under our control. The patriation process, which came to a head between 1980 and 1982, was crucial but fraught with difficulty and was for a time, profoundly divisive.

The "Supreme Law"

Introduction

What is the Constitution?

Introduction


What is the Constitution?


All countries have a constitution of some kind. The constitution is the “supreme law” that spells out how government works, its powers and responsibilities, and often the rights and freedoms of its citizens. It is a set of rules that serve as a check on the authority of government.

Proclamation of the Constitution Act, 1982
02_canadian_charter_mikan_3931664_LAC.jpg The Canadian Charter of Rights and Freedoms

Canada’s Constitution lays out the functions of the branches of government (executive, legislative, and judicial), and the levels of government (federal and provincial). It gives democratically elected governments the authority to pass and enforce laws, and draws boundaries around how governments must treat the country’s citizens. It defines jurisdiction: which matters are under the jurisdiction of the provinces (for example, education, health, resources) and which are under the jurisdiction of the federal government (for example, banks, defence, trade).

Arif Virani, Member of Parliament for Parkdale–High Park, Constitutional Lawyer
03_fathers_of_confederation_1864_mikan_3194982_LAC-magic.jpg The Fathers of Confederation, 1867

Canada’s Constitution also recognizes  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.  governance, but 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, who had their own laws and constitutions before the French and British settlers arrived, were not consulted or included in the drafting of the BNA Act in 1867. Many feel that the Canadian federation includes 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.  as well as provincial and federal jurisdictions. Finally, the Constitution includes rules about how it is to be interpreted and how it can be changed over time.

From Confederation in 1867 to 1982, Canada’s Constitution was still an act of British Parliament, a remnant of Canada’s colonial past. Throughout the first two-thirds of the twentieth century, Canadian (and British) politicians tried without success to make the Constitution a Canadian law, a process we called 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.  .

In order to patriate the Constitution, the federal and provincial governments needed to agree on how changes - amendments - would be made in Canada.

In order to patriate the Constitution, the federal and provincial governments needed to agree on how changes - amendments - would be made in Canada.

Constitutional Conference, November 5, 1981
Arif Virani, Member of Parliament for Parkdale–High Park, Constitutional Lawyer
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Trudeau & Lévesque, 1980

The Patriation Story

The Patriation Story



Why did patriation happen in the early 1980s when it had failed before?

Many in Canada, including Prime Minister Pierre Trudeau, were bothered by the fact that the Constitution was a British law. Trudeau was also keen on having rights and freedoms protected in Canada’s Constitution. Even before he was Prime Minister, Trudeau pushed for constitutional change, and between his election to the office in 1968 and patriation in 1982, the Constitution was never far from his mind.

Pierre Trudeau, September 9, 1968 (Canadian Broadcasting Corporation)

He sought to promote a philosophical ideal of a “just society,” with French and English Canadians in equal partnership. 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 were not included in this partnership. They felt strongly that they should at the very least, be consulted. Several premiers and political leaders believed the Constitution was important, but they did not agree on all of Trudeau’s objectives for constitutional change, nor on the process that he thought should be used to achieve it.

Many provincial governments had their own ideas about the Canadian federation and how powers ought to be divided — especially when it came to control over natural resources. The provinces wanted a rebalancing of jurisdiction, while Trudeau did not want to renegotiate the division of powers between federal and provincial governments. He wanted to restrict the negotiations to 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.  , a 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.  , and an 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. .

An 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. that allowed for the Constitution to be changed without the British government’s involvement was essential to 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.  . There had been many attempts to devise a formula, but they had all floundered for one reason or another. Changing a constitution must be difficult, but there has to be a mechanism to make it possible when there is broad agreement about the need for change. Several parties presented ideas about how much power and control should be exercised by Canadians, the provinces, the federal government, and 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 in amending the Constitution.

Peter Lougheed, Allan Blakeney, Sterling Lyon, Bill Bennett, 1981
01_levesque_pq_win_873049_CP.jpg René Lévesque's Parti Québécois victory, November 15, 1976

Many political events shaped 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 of 1980-82. One was the sovereigntist movement that culminated in the 1976 election of the Parti Québécois (PQ), led by René Lévesque. The PQ called 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.  on sovereignty in 1980, asking Québecers if they wanted to separate from the rest of Canada. As he campaigned against sovereignty during the 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.  campaign, Trudeau promised to renew federalism A system of government in which a country includes both a central government and a set of regional governments, which are not subservient to the central government but have their own separate powers.  through constitutional change. In the end, the sovereignty side lost the 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.  , and constitutional reform became an imperative.

In the end, the sovereignty side lost the referendum, and constitutional reform became an imperative.

03_referendum_tally_DB_514_7943_12150120_0_NFB.jpg Québéc Sovereignty rejected at the Referendum, May 20, 1980
René Lévesque suffers defeat in 1980 Québéc Referendum

Road to patriation

Immediately after the 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 and his Minister of Justice Jean Chrétien started working with the provinces to make a patriation deal. After five months of negotiations, the federal and provincial governments could not come to an agreement. Frustrated with what he thought was provincial intransigence, Trudeau announced what he called the “People’s Package” on October 2, 1980.

Trudeau proposed a resolution to the House of Commons The “lower” legislative assembly of Parliament (relative to the Senate’s “upper” house) in the Canadian Parliament. The House is composed of the popularly elected representatives of ridings (electoral districts) across Canada.  that would authorize the federal government to go to Britain unilaterally and request constitutional 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.  with his preferred 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. and a 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.  .

Pierre Trudeau, 1980 (CTV)

The Prime Minister also announced the creation of the Hays-Joyal Committee The Special Joint Committee on the Constitution, chaired by Senator Harry Hays and MP Serge Joyal, in 1980 and 1981. It held three months of hearings (many televised) and took written submissions from more than 900 individuals and organizations on the federal government’s proposals for constitutional patriation. , which would hold national public hearings designed to consult with Canadians on what should be included in their Constitution. This was the first time Canadians were asked to participate in constitutional deliberations, and it sparked significant engagement. Interest in the Constitution grew with the nationally televised hearings of the Committee. It heard a broad range of views from women, 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, people with disabilities, gays and lesbians, police chiefs, property rights activists, and many others. The level of interest and participation surprised everyone.

Women Protesting in Ottawa, 1970
The Constitution Express Finally Arrives, 1980 (CTV)

At the same time, 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 increased their efforts to force Canada’s political elites to address their concerns. On November 24, 1980, hundreds 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 boarded the Constitution Express trains in Vancouver and rolled across the country, picking up supporters on the way to 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 protest their exclusion from the constitutional reform process, and to demand that any constitutional changes respect their rights and treaties. Ultimately, the 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.  lobby travelled to Britain, Europe, and New York to build international support.

Most of the provinces were furious with Trudeau’s People’s Package Pierre Trudeau’s expression for the parts of his 1980 patriation resolution that included his vision for constitutional renewal, patriation itself, the Charter of Rights and Freedoms, and a plan to settle on an amending formula through a referendum.  proposal because the federal government planned to patriate the Constitution without their agreement. Three provinces took the federal government to court to challenge its ability to proceed unilaterally. Six and eventually eight provinces (all but Ontario and New Brunswick) collaborated to develop a counter strategy that would include the provincial governments. Called the ‘Gang of Eight’ The eight provincial premiers who opposed Pierre Trudeau’s plan for patriation of the Canadian Constitution in 1980-81, both politically and in court actions — that is, all of the provinces except for Ontario and New Brunswick. Nova Scotia and Saskatchewan were the last to join what was originally a “gang of six.” , they lobbied in Britain against the federal proposal.

The Gang of Eight, 1981
02_constitutional_conference_CP_789554.jpg Constitutional Conference, November 5, 1981

In the end, the Supreme Court of Canada was asked to decide whether the federal government could proceed with 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.  unilaterally. The Court ruled that by convention, 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.”  should obtain substantial provincial consent before proceeding. As a result, Trudeau agreed to hold a final round of negotiations with the provinces in November 1981. If these talks were to fail, he felt the federal government could hold a national 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.  on his “People’s Package” Pierre Trudeau’s expression for the parts of his 1980 patriation resolution that included his vision for constitutional renewal, patriation itself, the Charter of Rights and Freedoms, and a plan to settle on an amending formula through a referendum.  . The November patriation conference was rough and dramatic, but finally a deal was reached — without Québec.

The November patriation conference was rough and dramatic, but finally a deal was reached — without Québec.

René Lévesque leaves the constitutional conference, November 4, 1981

There were other problems too. Women realized that the “notwithstanding clause” which allows governments to override several rights in the Charter would compromise the gender equality enshrined in sections 15 and 28. They organized by the thousands and eventually ensured that governments could not opt out of section 28 - that all rights in the Charter are guaranteed equally to women and men.  

Women's Constitutional Conference, 1981
"Women Saskatchewan", 1981 (Canadian Broadcasting Corporation)

Rights for 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 had been deleted from the final agreement. Premier Allan Blakeney of Saskatchewan insisted that if governments were willing to change the agreement to protect the gender equality guarantees in section 28, they should also reinsert the section that recognizes and affirms existing 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. and treaty rights. Eventually, the other governments agreed. But 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 did not achieve the full recognition that they were seeking. Finally, on April 17, 1982, Pierre Trudeau and Queen Elizabeth II met to sign Canada’s proclamation of the Constitution Act, the last leap to full Canadian sovereignty.

Finally, on April 17, 1982, Pierre Trudeau and Queen Elizabeth II met to sign Canada’s proclamation of the Constitution Act, the last leap to full Canadian sovereignty.

Trudeau and Queen Elizabeth II sign the constitutional proclamation, April 17, 1982
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Proclamation of the Constitution

The Legacy of Patriation

The Legacy of Patriation



The Constitution Act, 1982 was a great act of political will. The national press called it Canada's “spiritual coming of age”. It forever changed the role of the courts, the powers of governments, recognition of Indigenous rights, and the way Canadians experienced their Constitution.

The government of Québec’s sense of betrayal is an enduring legacy of the 1981 conference. Its exclusion from the final deal shook Canadians for decades after. 

01_levesque_holding_signatures_898984_CP.jpg Lévesque holds up the constitutional accord that was signed without him, November 11, 1981
02_lucien_bouchard_872652_CP.jpg Lucien Bouchard's Parti Québécois election victory, October 25, 1993
Parliament Hill, Ottawa, 2016
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Supreme Law:

An Introduction

Canada’s Constitution is its supreme law. It sets the rules for how we govern ourselves. How this supreme law was brought home from Britain is one of Canada’s great stories - full of melodrama and intrigue.

Why the Canadian Constitution and its Story Matter

What is the Constitution?

The Patriation Story

The Legacy of Patriation

Table of contents