Evaluating the 1982 Constitution Act: Has Patriation Been a Failure?
Presented to the New England Political Science Association, Mystic, Connecticut, April 22, 2023
This week, Canada marked the 41st anniversary of the 1982 Constitution Act, which “patriated” the British North America Act of 1867 and added both a domestic amending formula and the Canadian Charter of Rights and Freedoms. The effect of the “new constitution” over the first few years was political. It was a boon to English-speaking Canadian nationalists, especially in Central Canada, who saw in the new document a locus for national identity, partly because it elevated the role of the federal government. The political scientist Philip Resnick set out this argument a few years after patriation, when he argued that English Canadians view the federal government as their national government and their primary pole of identity (Resnick and Latouche 1990).
Fans of this view, and others who thought the Charter of Rights would bring about a more civilized and liberal country, these gains outweighed the unanswered questions and lingering doubts that many had about the patriated constitution. Keith Banting and Richard Simeon titled their book about patriation And No One Cheered (1984), arguing that the negotiating process had been wildly divisive, and that what Canadians felt once Queen Elizabeth II signed the final papers was simple relief that what Jacques Parizeau in another context called “never-ending visit to the dentist” was over. Quebec was excluded from the final night of negotiations and did not support the final document (and still rejects it 40 years later). Aboriginals did not see their inherent right to self-government recognized, nor were their land claims satisfied. No one seemed satisfied with the amending formula (Parliament plus seven provinces representing at least half the Canadian population), and on a number of issues political necessity expanded Quebec’s call for a veto over amendments into a requirement for unanimity. Additionally, legislatures could use a “notwithstanding clause” to override certain parts of the Charter of Rights.
While the 1982 Constitution Act indeed partriated the constitution and made it a purely Canadian document by eliminating the role of the British parliament in its amendment, the proceed seemed incomplete, if only because Quebec did not accept its legitimacy. In fact, the Act fell short in a number of areas, and the more time that passes, the worse the 1982 Act looks. Questions about the reform of federal institutions such as the Senate and the Supreme Court remained unanswered, as did questions about the division of powers between Ottawa and the provinces. The Charter of Rights has not been an unequivocal success. The sections on women’s rights and Aboriginal rights did not resolve questions like gender pay equity and Aboriginal land claims, both of which linger to the present. The notwithstanding clause was drafted far too broadly and proved to be a tool for provincial governments to shelter broad sections of legislation, including several very controversial laws, from Charter scrutiny. The Act has also become a lightning rod for populist anger, as conservative activists deride it for expanding the power of the courts and social groups the specialize in using the Charter to advance their goals. The Charter is also under attack from populists who argue that legislative majorities reflect the “will of the people,” with which Charter-based judicial review interferes.
An Unreconciled Quebec
Immediately after 1982, Quebec’s exclusion seemed to matter the most. One of the roles of the constitution, from the point of view of Quebec intellectuals as well as significant numbers of Canadian intellectuals, like Kenneth McRoberts (1997), is to establish the basic relationship between the “two founding peoples” of Canada. André Laurendeau laid out this argument in the blue pages of the first volume of the Report of the Royal Commission on Bilingualism and Biculturalism (1967). Quebec generally expected a reformed constitution to be based on the duality of Canada, in which the federal government spoke for “English Canada” and the government of Quebec spoke for the French-speaking nation within the country. The Trudeau government in Ottawa never entertained this idea seriously, and arguments for duality faced opposition not only in central Canada, but also on the Prairies. On top of this, René Lévesque’s Parti Québécois held power in Quebec City, and the probably misplaced belief that a pro-independence government had no sincere interest in patriating the Canadian constitution made it easier to exclude Quebec from the final settlement in 1982.
The Constitution Act, especially the Canadian Charter of Rights and Freedoms, targeted the powers of the Quebec government, especially over language. The Charter of Rights and Freedoms, which is part of the Canadian Constitution Act 1982, had a significant impact on Quebec's language laws, particularly the Charter of the French Language (also known as Bill 101).
Prior to the adoption of the Charter of Rights and Freedoms, Quebec had passed a number of language laws aimed at protecting and promoting the French language, including the Language Act of 1969 and the Charter of the French Language of 1977. These laws restricted the use of English in public institutions and business and made French the official language of the province.
However, the Charter of Rights and Freedoms, which guarantees fundamental rights and freedoms for all Canadians, including language rights, placed some limitations on Quebec's ability to legislate in this area. Specifically, section 23 of the Charter guarantees the right of citizens to be educated in either English or French, depending on the linguistic minority they belong to, and section 16 guarantees the right to communicate in either English or French with federal institutions.
The Supreme Court of Canada has interpreted these provisions to mean that while Quebec has the right to promote and protect the French language, it must do so within the bounds of the Charter's protections for linguistic minorities. For example, in the 1988 case of Ford v. Quebec, the Supreme Court struck down a provision of the Charter of the French Language that prohibited businesses from using languages other than French in their signs, on the grounds that it violated the freedom of expression protections in the Charter of Rights and Freedoms.
Overall, while the Charter of Rights and Freedoms has placed some limitations on Quebec's ability to legislate in defense of the French language, it has also provided a framework for recognizing and protecting the rights of linguistic minorities in Quebec and throughout Canada. Prior to the adoption of the Charter, Quebec had passed the Bill 101 in 1977, which made French the only official language of the province and restricted access to English-language schools for most children. Under Bill 101, only children who had received their primary education in English in Quebec, or who had a parent who had received their primary education in English in Quebec, were eligible to attend English-language schools.
In 1989, the Supreme Court of Canada upheld the constitutionality of section 23 and struck down certain provisions of Bill 101 that restricted access to English-language education. This decision led to the adoption of Bill 104 in 2002, which modified the eligibility requirements for English-language education in Quebec to allow children who had received their primary education in English in Canada to attend English-language schools, regardless of whether their parents had received their primary education in English in Quebec. The use of the Charter to target Quebec laws that were already in effect rankled Quebec nationalists like Guy Laforest, who considered the Charter a deliberate attack on Quebec’s legislative authority, and a diminution of its power without its consent (Laforest 1995: 38-55). For Laforest, the way the Constitution changed in 1982 left the entire document illegitimate with half the Canadian duality.
By the time patriation took place, Quebec had already rejected sovereignty in a 1980 referendum, but there was already a wide sense that there would eventually be a second vote, as there indeed would be in 1995, and that unresolved constitutional questions would be the trigger for that vote (also essentially correct). Brian Mulroney’s Progressive Conservatives won the 1984 federal election promising to bring Quebec back into the Constitution “with honor and enthusiasm,” and the process led to the negotiation of the Meech Lake Accord in 1987, which proposed to recognize Quebec as a “distinct society within Canada” and contained a series of constitutional amendments addressing five specific Quebec objections to the 1982 settlement (Rémillard 1986). However, since the Accord also included changes to the selection process for Senators and Supreme Court justices, it required the unanimous ratification of the provinces within a three-year window, and Manitoba and Newfoundland ultimately refused to ratify the Accord after changes of government. The rejection of the Meech Lake Accord led to surge in support for Quebec sovereignty, which in turn led to the Charlottetown Accord of 1992, which in a nod to the growing populism that the Meech Lake experience generated, was submitted to (and rejected by) a precedent-creating national referendum in addition to the normal restrictive amending formula (again, unanimity, as it would have amended the constitution extensively).
Unreformed Federalism
In the negotiations leading to patriation, there was substantial discussion of reforming national institutions to make them more representative of regions, especially Western Canada. The original British North America Act in 1867 held to the principle of representation by population in both the House of Commons and the Senate, meaning that Ontario and Quebec dominated their membership. The justices of the Supreme Court of Canada were nominated unilaterally by the Prime Minister. Roger Gibbins has studied the arguments for expanding the role of the regions in these federal institutions and was critical of the 1982 Act for failing to address them (in Banting and Simeon 1984). He ascribes much of the blame to Western Canadian provincial governments, accusing them of being unable to resist the temptation to build their own electoral bases rather than to improve the functioning of national institutions over which they might have less control. The failed Meech Lake Accord of 1987 tried to address these problems, specifically creating a process for provincial governments to nominate candidates for the Senate and the Supreme Court. The failed Charlottetown Accord in 1992 would have gone further by creating an elected Senate with equal representation for each province, similar to the Australian Senate.
Meech Lake and Charlottetown: Could This Thing be Unamendable?
The Meech Lake and Charlottetown experiences understandably left everyone exhausted, and on election night in 1993, incoming Prime Minister Jean Chrétien promised to put the Constitution “in the freezer.” This did not in fact happen, as Quebec had its second referendum on sovereignty, but the defeat of this referendum established a certain status quo, in which the 1982 Constitution Act remained in place, as did Quebec, however unhappily. The lesson that Canadians learned from all of this was twofold: first, that significant constitutional amendments would never achieve unanimous constitutional support, making the Constitution unamendable, and secondly, that attempts to make amendments ended in national unity crises.
The amending formula adopted in 1982 was complex and set a high bar. The inability to set an amending formula was the most important factor preventing patriation before 1982, when amendment took place through the British parliament upon Canada’s request, without a definition of what constituted a request. There was never any doubt, ratified by the Supreme Court in the Patriation Reference of 1981, that “substantial provincial consent” was required, but there was pushback at the idea that consent had to be unanimous to qualify as substantial. Quebec has long insisted upon a veto on dualist grounds. In the end, the general amending formula was to be the consent of the federal Parliament plus seven provinces representing at least half the population of Canada. However, on fundamental issues such as changes to the Crown or to national institutions, unanimous provincial consent would be needed. In addition, after the 1995 Quebec referendum, the government of Jean Chrétien passed a law preventing Parliament from ratifying an amendment under “seven and fifty” that did not have the support of Ontario, Quebec, British Columbia, and at least two each of the Prairie and Atlantic Provinces. The 1992 Charlottetown Accord referendum introduced the idea of the amendment process including national plebiscites. Effectively, unanimity for all amendments—potentially with support from every province in a referendum--would be the only way to satisfy all these formulae at once.
Women’s Rights
Overall, the Canadian Charter of Rights and Freedoms has had a positive impact on women's rights in Canada. Since its introduction in 1982, the Charter has been used in numerous court cases to challenge laws and policies that discriminate against women and to advance women's equality (Kome 1983).
For example, section 15 of the Charter, which guarantees equal protection and benefit of the law without discrimination based on sex or other grounds, has been instrumental in advancing women's rights in areas such as employment, education, and family law. This section has been used to challenge discriminatory laws and policies, including those that discriminate against women in the workplace, that deny equal educational opportunities to women, and that restrict women's reproductive rights.
Moreover, the Charter has played a crucial role in ensuring that women's voices are heard and that their perspectives are taken into account in public policy decisions. For example, section 28 of the Charter, which guarantees equal rights and freedoms for men and women, has been used to support the inclusion of women's perspectives in policy-making processes, including those related to health, education, and social welfare (Leclerc, in James and Kasoff 2013: 251-283).
However, despite these positive developments, there are still significant challenges that women face in Canada, including issues related to violence against women, pay equity, and access to affordable childcare. While the Charter has provided important legal tools for addressing these issues, more work is needed to ensure that women's rights are fully respected and protected in practice. If the notwithstanding clause is used to justify laws or policies that discriminate against women, or that limit their rights and freedoms, then it could certainly be seen as a threat to women's Charter rights. Governments retain the right to use he notwithstanding clause to override section 15 of the Charter, which guarantees equal protection and benefit of the law without discrimination based on sex or other grounds, in order to pass a law that discriminates against women.
The First Nations
The Constitution Act 1982 has had a significant impact on the rights of First Nations in Canada and has been an important tool for advancing their self-determination, autonomy, and rights. However, it is important to note that the Act has not fully resolved all of the challenges and issues facing First Nations in Canada (Borrows 2010).
One of the important ways in which the Constitution Act 1982 has impacted First Nations is by recognizing and affirming their inherent rights and title to their traditional lands and territories. Section 35 of the Act recognizes and affirms the existing Aboriginal and treaty rights of the Indigenous peoples of Canada, which has helped to strengthen their legal claims to their lands and resources.
Additionally, the Constitution Act 1982 has provided a framework for negotiating and implementing modern treaties and land claims agreements between First Nations and the Canadian government. These agreements have helped to address historical grievances and provide greater control over lands and resources for First Nations communities.
However, despite these positive developments, there are still significant challenges and issues facing First Nations in Canada, including poverty, inadequate housing, and limited access to education and healthcare. Additionally, the implementation of the Constitution Act 1982 and its provisions related to Indigenous rights and self-determination has been inconsistent and has not always been respected by the Canadian government (Lusztig in James and Kasoff 2013: 225-250)
Overall, while the Constitution Act 1982 has had a positive impact on the rights of First Nations in Canada, there is still much work to be done to address the ongoing challenges and to fully implement the Act's provisions related to Indigenous rights and self-determination.
Does The 1982 Constitution Act Protect Democracy from Populists?
Authoritarian populism is a political ideology that emphasizes the role of a strong leader who represents the will of the people and seeks to defend their interests against a perceived elite or establishment. The idea of a "general will" is a central concept in this ideology, as it suggests that the leader's actions are not only in the best interest of the majority but are also a reflection of the popular will.
The concept of a general will originated with the 18th-century philosopher Jean-Jacques Rousseau (1762), who argued that in a truly democratic society, the will of the people would be expressed through the decisions of their representatives. Rousseau believed that the general will represented the common good and was distinct from the particular interests of any individual or group.
In the context of authoritarian populism, the idea of a general will is often used to justify the concentration of power in the hands of a single leader or party (Snyder 2017). Proponents of this ideology argue that the leader's actions are not only legitimate but necessary to protect the interests of the people against the perceived threats posed by globalism, immigration, and other factors. This view is often accompanied by a rejection of traditional democratic institutions, such as independent courts and a free press, which are seen as obstacles to the realization of the general will.
Critics of authoritarian populism argue that the idea of a general will is often used to justify the suppression of dissent and the concentration of power in the hands of an authoritarian leader or ruling party. They contend that the general will is often manipulated by demagogues to promote their own interests rather than the interests of the people as a whole.
Fareed Zakaria's (1997) thesis on illiberal democracy is that democracy without liberalism can lead to a situation where the majority tramples on the rights of the minority, which undermines the principles of freedom and equality that are essential to a functioning democracy.
Zakaria argues that democracy is not just about holding free and fair elections, but also about protecting individual rights and ensuring that the rule of law prevails. Liberalism, in this context, refers to the set of principles and values that underpin democratic societies, such as freedom of speech, freedom of the press, and the protection of minority rights.
According to Zakaria, illiberal democracies are characterized by elected leaders who use their power to undermine democratic institutions, silence dissenting voices, and trample on the rights of minorities. These leaders may be popularly elected, but they do not respect the principles of liberalism that are essential to a functioning democracy.
While the notwithstanding clause is not always used for illiberal purposes, its existence in the Canadian constitution raises questions about the potential for illiberal tendencies in the country's democratic system. This clause is often seen as a tool for illiberal democracy, as it allows elected leaders to limit individual rights and freedoms in the name of promoting the will of the majority.
Finally, some right-wing populists have challenged the Charter by advocating for the use of the notwithstanding clause to override certain rights and freedoms protected by the Charter. For example, some have called for the use of the notwithstanding clause to restrict the ability of transgender people to use the restroom of their gender identity or to limit the ability of religious minorities to practice their faith. Conservatives have taken issue with the Charter since it came into effect. F.L. Morton wrote a renowned article in 1992 criticizing what he called the “Court Party,” a collection of interest groups that sought to advance its political goals through court decisions based on “their sections of the Charter” rather than by lobbying legislatures and governments. Morton criticizes the Act for “replacing parliamentary supremacy with constitutional supremacy” (1992: 627). Morton’s paper seems to prefigure populist rhetoric of the 2020s when he describes his Court Party as a collection of organizations focused on “disability, prisoners, the environmentally sensitive, ethnocultural groups, and gays and lesbians,” supported by allies in the universities and the media. He also argues that the Charter represented “a horizontal transfer of power to new elites” and calls instead for a “vertical transfer of power to the people [emphasis added]”
Another reason some conservatives have opposed the Constitution Act is their belief that it undermines the traditional values and cultural identity of Canada (Graves 2020). Morton called it “the vanguard of a post-materialist revolution” (1992: 629) This belief is often tied to opposition to multiculturalism, which some conservatives see as a threat to Canadian identity. Conservatives who hold this view may argue that the Constitution Act has contributed to the erosion of Canada's cultural identity by promoting a vision of the country that is too inclusive and diverse.
Finally, some conservatives have opposed the Constitution Act on ideological grounds, arguing that it is too closely associated with liberal values and undermines conservative principles. This view is often tied to a broader skepticism of the role of government in society and a belief in limited government and individual freedom.
Present-Day Problems
There is growing dissatisfaction with the constitution as 1982 left it. No one is calling for new constitutional negotiations, but pressure from several provinces on constitutional norms may make reopening the constitution inevitable. In 1984, Patrick Monahan and Marie Finkelstein could dismiss the notwithstanding clause blithely, arguing that most political players would consider it so toxic that it would fall into disuse alongside the federal power to disallow provincial legislation. Not so. Quebec and Ontario have involved the notwithstanding clause proactively to pass legislation that the courts cannot nullify on Charter grounds. Quebec’s Bill 21 on secularism and Bill 96 on promoting the French language both invoked the Charter, and Ontario passed legislation using the clause to take away the right of unionized workers in the education system to strike. Quebec has also passed legislation affirming the right to amend the Constitution unilaterally (Section 45 of the Constitution Act says that “the legislature of each province may exclusively make laws amending the constitution of the province,” in one case to claim that the Québécois are a nation and that French is the official language of Quebec, and in another to end the requirement for members of the National Assembly to swear allegiance to the monarch. Saskatchewan has introduced “The Saskatchewan First Act,” and Alberta has passed the Alberta Sovereignty within a United Canada Act.” (2022) Saskatchewan’s legislation is careful to affirm existing provincial jurisdictions under the Constitution, but Alberta’s law grants the Alberta legislature the power, certainly unconstitutionally, to declare federal legislation unconstitutional and to order provincial entities to ignore these laws. Both the Alberta Sovereignty Act and Quebec’s Bills 21 and 96 appear headed to the Supreme Court of Canada, which would bring about a more serious political crisis.
In addition to provincial pressure, aboriginal Canadians still have constitutional concerns, amplified by the discovery of unmarked graves on the grounds of former residential schools, and a growing number of Canadians want to reconsider the future of the monarchy after the death of Queen Elizabeth II. No one may want new constitutional negotiations, fearing a national unity crisis, but Canadian politics may be careening to reopening the unamendable constitution, as the unity crisis may come without it.
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