The Patriated Constitution is Failing
No one may want new constitutional negotiations, fearing a national unity crisis, but Canadian politics may be careening toward reopening the unamendable constitution.
This past April, Canada marked the 40th anniversary of the 1982 Constitution Act, which “patriated” the British North America Act of 1867 (it also renamed it) 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 Canadian nationalists, 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.
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, 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 an eternal trip to the dentist’s chair 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 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 Quebec’s call for a veto over amendments expanded into a requirement for unanimity. Additionally, legislatures could use a “notwithstanding clause” to override certain parts of the Charter of Rights.
Immediately after 1982, Quebec’s exclusion seemed to matter the most. The province 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 was 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 constitutional amendments addressing Quebec’s objections to the 1982 settlement. 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 two provinces 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 national referendum in addition to the normal amending formula (again, unanimity, as it would have amended the constitution extensively).
Meech Lake and Charlottetown 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.
Canadians still largely feel this way, and Prime Minister Trudeau avoids discussing the constitution as much as he can. However, 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. 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.” 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.
References:
https://www.alberta.ca/alberta-sovereignty-within-a-united-canada-act.aspx
https://www.constitutionalstudies.ca/2022/08/qa-with-dr-dave-guenette-quebecs-bill-96/
https://www.economist.com/the-americas/2022/12/08/the-ticking-bomb-under-canadas-constitution
https://www.freealbertastrategy.com/the_strategy
https://ici.radio-canada.ca/nouvelle/1940108/assemblee-nationale-abolition-serment-roi-deputes-pq
https://www.mqup.ca/trudeau-and-the-end-of-a-canadian-dream-products-9780773513006.php
https://worldcat.org/title/15958866
https://www.worldcat.org/title/11727689
https://www.worldcat.org/title/243500674
Thank god! Years ago I read an article about the patriation process and I was struck by such an obvious failure in process that it seemed set up for bare passage, not brokering a consensus - the consultation timelines, etc. I'm so glad read that someone else thinks it isn't ridiculous to expect to be able to change our laws, and that even if we don't think we need to now, at some point, Canada will also need to change and we're better off to map out how in advance.