Four Lenses of Patriation

43 Four Lenses of Patriation In the decades since 1982, there have been many and draw some conclusions about the impact of attempts to explain and evaluate the patriation of patriation. the Canadian Constitution. Some have concentrated mainly on winners and losers. Others have attempted to provide explanations that are rooted Systemic Level Interpretations in the fundamental social and political charac- teristics of Canada. Some analysts and observ- ers have concentrated on specific individuals or Analyses of the patriation process tend to follow players, attempting to explain the final shape of some familiar patterns. Some analyses concen- patriation by way of their involvement. Each of trate on the immediate outcomes of the exercise. these attempts provides a specific or particular Generally, these are cast in terms of winners and lens through which Canadians can understand losers. However, many also attempt to describe and evaluate the events of 1982. or predict the long-term implications of patriation. Others look at the root causes of the negotiations and outcomes. That is, what caused the Of course, each lens or paradigm leads to a various participants to engage in such a sweeping different conclusion about the worthiness and process of change? impact of the event. Questions such as “Was it good or bad for Québec, Indigenous peoples, or women?” are important if we are to properly Generally, these analyses have concentrated evaluate the constitutional provisions which were on systemic-level explanations rooted in the implemented at that time. However, as we know regional, economic, and ethnic divisions of Can- from other political events, terms like “good” ada but many have examined the process and and “bad” are laden with assumptions about outcomes from the point of view of individual the particular impact and shape of events on participants, especially the Prime Minister and society. One person’s “bad” is another’s “good,” the Premiers. Finally, after 35 years, there are and seldom do individuals or groups think that an increasing number of analyses that depend their own interests have been completely real- on the actual outcomes of various constitu- ized. More importantly, it is often the case that tional changes. These include, for example, the our evaluation changes over time as the provi- impact on the Canadian federal system of having sions involved are tested or used in the body a Charter of Rights and Freedoms, the use of the politic. amending formula, or the development of a body of judicial decisions on the rights of Aboriginal For the purposes of this article, it seems peoples in Canada. appropriate to look at four assessments of the 1982 patriation exercise. Each concentrates This article concentrates mostly on the first in large part on the process and on judgments approach. That is, what were the immediate out- that were tendered shortly after the comple- comes of the exercise and how were they viewed? tion of patriation. Some of these paradigms — However, it will also provide some observations or lenses — are well known. Others may seem on actual versus expected outcomes and the novel or even completely unfamiliar. This article impact of patriation on general political life in will attempt to evaluate the claims put forward Canada. Constitutional Forum constitutionnel 43 44 Four Ways of Looking at Patriation was the result of the assertion of political power by provincial administrations that were largely Using the first systemic approach, patriation can exasperated with the continuing fight between be viewed through one of several lenses. One Pierre Trudeau and René Lévesque. More impor- lens, which has the greatest currency in Québec, tantly, it was the initiative of the nine provin- is that it was a betrayal of the Canadian compact cial governments, led primarily by Ontario and between the two founding nations in Canada, Alberta, and facilitated by Saskatchewan, that the French and English. This interpretation is ultimately resulted in a compromise that was not usually called “The Night of the Long Knives,” only acceptable to most Canadians, but condu- referring to the night of November 4, 1981, cive to strengthening the bonds of the Canadian when the nine English-speaking provinces ham- federation at a time when it was under siege from mered out a deal with the federal government, various important internal forces of dissolution. to which the government of Québec, headed by Put more bluntly, the premiers of the nine prov- René Lévesque, could not agree. A second lens inces saved Canada from Trudeau and Lévesque. involves the assumption that the Trudeau initiative was a triumph for a broader and more inclu- Not all of these lenses will seem familiar to us sive pan-Canadian identity, involving mainly the but each has some currency with various Cana- Charter of Rights and Freedoms and the patria- dians. That is because they each contain plausi- tion of the Constitution to Canada. These two ble explanations of the event. Let us now turn to lenses have largely dominated discussion over each of these explanations in more detail. the past 35 years. A third lens considers patriation as the last “The Night of the Long Knives” gasp of a society dominated by privileged white men seeking to maintain their own power and For many in Québec, the negotiations that to exclude rising groups of women, Indigenous took place in Ottawa on the night of November 4, peoples, and disenfranchised groups largely 1981, were a fundamentally flawed process with made up of immigrants, the economically disad- a deeply flawed result. In particular, they argue vantaged, as well as those who had hitherto been that the reasonable and necessary aspirations of excluded because of sexual orientation. These the people of Québec were excluded or unrecog- people, many of whom were involved peripher- nized. The fact that the government of Québec ally in the negotiations, were able to assert their was not involved in the negotiations on the night limited influence in a way which ensured that of November 4, and did not agree to the out- future constitutional discussions would not be come of those negotiations, has convinced many conducted behind closed doors between largely Canadians, both inside and outside of Québec, privileged white male political leaders. That is, that patriation was suspect if not completely ille- while they were unsuccessful in some respects, gitimate. especially regarding the Charter of Rights and Freedoms, they were successful enough to ensure This view, or lens, had considerable sup- that any future fundamental changes to Cana- port immediately after the agreement, especially dian society would be negotiated on a much among academics in Canada who concentrated broader basis than those that took place in 1981. on this area. In a book entitled And No One Cheered, edited by Keith Banting and Richard Finally, a fourth lens — less accepted and less Simeon, many leading academics condemned well-known — is that patriation was ultimately patriation. Phrases like, “Québec in Isolation,” “A the assertion by the nine English-speaking prov- Dangerous Deed,” and “Questionable Jurispru- inces of a package of proposals that were unac- dence,” echoed throughout the book. In the final ceptable, in whole or in part, to both the Premier article, Banting and Simeon concluded that in of Québec and Prime Minister Trudeau, but “the other nuts and bolts of constitution making generally served to preserve Canadian unity at are another set of questions which we have inad- a crucial time in our history. That is, patriation equately addressed — questions about commu- 44 Volume 26, Number 2, 2017 45 nity, democracy, the role of government. That the The counter to this assertion has always been First Ministers did not think them all through — that with reasonable arrangements the govern- and often use them in a purely rhetorical manner ment of Québec could, and would, have agreed to cloak self-interest in principle — should occa- to patriation. This view is supported in part by sion no surprise.”1 Together with other authors, the exchanges between Trudeau and Lévesque they considered the whole project to have been when the First Ministers met on November 5, flawed, if not dangerous. 1981 to agree to the compromise that had been hammered out overnight. In that exchange, pub- How legitimate is this interpretation? As lished first in 2011, Lévesque says the following a matter of law, the Supreme Court decision in after the other provincial Premiers have spoken: 1981 simply did not agree with it. Indeed, the Court rendered a further decision on this matter I will be brief. We have had a veto for 114 years. several years later, reinforcing the 1981 ruling. Yank out compensation and there is nothing left. Québec says no. Just for historical purposes Nevertheless, many argue that there was a I would like to state our opposition to this. “conventional” constitutional requirement that There was more discussion about various details would include Québec, if not some other prov- and possible permutations on the amending inces. Put another way: despite the legal require- formula. However these were in the nature of ments, the exclusion of Québec from the agree- last-minute suggestions by Ontario in order to see ment violated the basic conception of Canada if Québec could be brought into the agreement. as having two founding nations. Québec should Finally, the document was placed before the have had a veto over any major constitutional First Ministers. At that point the delegation from change. Québec left.3 (Italics in original.) The participants in the process did not take As noted in the original notes: after the exchange, this position lightly. Everyone understood how Lévesque and Trudeau discussed a number of important it was to make sure that all provinces, things including language rights and the com- but specifically Québec, were involved in, and pensation provision of the amending formula in were in agreement with, any major constitutional the patriation package.

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