Patriation and Its Consequences Constitution Making in Canada EDITED BY LOIS HARDER AND STEVE PATTEN Sample Material © 2015 UBC Press © UBC Press 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright, www.accesscopyright.ca. 23 22 21 20 19 18 17 16 15 5 4 3 2 1 Printed in Canada on FSC-certified ancient-forest-free paper (100% post-consumer recycled) that is processed chlorine- and acid-free. Library and Archives Canada Cataloguing in Publication Patriation and its consequences : constitution making in Canada / edited by Lois Harder and Steve Patten. Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-0-7748-2861-1 (bound).—ISBN 978-0-7748-2863-5 (pdf).— ISBN 978-0-7748-2864-2 (epub) 1. Canada. Constitution Act, 1982. 2. Constitutional history – Canada. 3. Constitutional amendments – Canada. 4. Canada – Politics and government – 1980-1984. 5. Federal-provincial relations – Canada. I. Patten, Steve, author, editor II. Harder, Lois, author, editor KE4199.P38 2015 342.7102′9 C2015-900732-1 KF4482.P38 2015 C2015-900733-X UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada (through the Canada Book Fund), the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Printed and bound in Canada by Friesens Set in Sabon by Apex CoVantage, LLC Copy editor: Frank Chow Proofreader: Marnie Lamb Indexer: Judy Dunlop UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 www.ubcpress.ca Sample Material © 2015 UBC Press Harder Patten_8305-006q_3Pass - epub_CIP.indd 4 4/1/2015 7:25:19 PM C o n t e n t s Acknowledgments / xi PART 1 Introduction: The Signifi cance of Constitution Making 1 Looking Back on Patriation and Its Consequences / 3 Lois Harder and Steve Patten 2 Constituting Constitutions: The Patriation Moment / 25 Janine Brodie PART 2 Tracing the Long Road to Patriation 3 Constitutional Nationalism: Politics, Law, and Culture on the Road to Patriation / 49 Eric M. Adams 4 The Evolution of the Charter / 72 Barry L. Strayer Sample Material © 2015 UBC Press viii Contents 5 The Rise of Spectator Constitutionalism, 1967–81 / 93 P.E. Bryden PART 3 Shaping Patriation: Law, Political Vision, Political Actors, and Political Struggle 6 Law, Politics, and the Patriation Reference of 1981 / 115 Philip Girard 7 The Judiciary in Trudeau’s Constitutional Vision: Intellectual Trajectory and the Origins of the Charter / 137 David Schneiderman 8 More Distress than Enchantment: The Constitutional Negotiations of November 1981 as Seen from Quebec / 159 Guy Laforest and Rosalie Readman 9 Tracking Justice: The Constitution Express to Section 35 and Beyond / 180 Louise Mandell and Leslie Hall Pinder 10 “28 – Helluva Lot to Lose in 27 Days”: The Ad Hoc Committee and Women’s Constitutional Activism in the Era of Patriation / 203 Marilou McPhedran, Judith Erola, and Loren Braul PART 4 The Political and Constitutional Consequences of Patriation 11 Patriation and the Law of Unintended Consequences / 229 Peter Russell 12 Canadian Federalism since Patriation: Advancing a Federalism of Empowerment / 244 Alain-G. Gagnon and Alex Schwartz 13 An Indigenous Constitutional Paradox: Both Monumental Achievement and Monumental Defeat / 267 Kiera Ladner Sample Material © 2015 UBC Press Contents ix 14 The Sad but True Story of a Shrinking Equality Opportunity Structure / 290 Alexandra Dobrowolsky List of Contributors / 313 Index / 323 Sample Material © 2015 UBC Press Looking Back on Patriation 1 and Its Consequences Lois Harder and Steve Patten On 3–5 November 2011, the Centre for Constitutional Studies at the University of Alberta hosted the Patriation Negotiations Conference to mark the thirtieth anniversary of the fateful deliberations that culmin- ated in the Constitution Act, 1982. The speakers’ roster included many of the key players involved in those 1981 negotiations, including Premiers Peter Lougheed (Alberta), John Buchanan (Nova Scotia), and Brian Peckford (Newfoundland), then Saskatchewan Attorney General Roy Romanow, and many political advisers and public servants who were intimately engaged in the strategizing, dealmaking, and agree- ment draft ing. The conference provided a fascinating opportunity to refl ect on Canadian “constitutional lore” associated with the patriation negotiations – the accepted stories about the role of the Kitchen Accord, the marginalizing of Quebec during the “Night of the Long Knives,” the exclusivity of executive federalism, and the single-mindedness of Prime Minister Pierre Trudeau. Interestingly, many of the key players remem- bered those events diff erently, and for some the desire to “set the record straight” was intense. Repeated with suffi cient frequency, particular narratives of historical events become authoritative, while alternative readings are regarded as self-serving revisionism. Yet what lore, revisionism, and record straight- ening demonstrate is the very elusiveness of one shared truth through Sample Material © 2015 UBC Press 4 Lois Harder and Steve Patten which to understand momentous historical events. In the case of the patriation negotiations, we do, of course, have a document whose signa- tories and terms attest to the dynamics of the bargaining. Yet the dry formality of the agreement’s provisions obscures much of the passion that infused the negotiations themselves, the long history that had pre- cipitated them, and the struggles of Indigenous peoples, women’s groups, and Canadians generally to see themselves reflected in their constitution. The Patriation Negotiations: A Synopsis Patriation refers to the eff ort to “retrieve” Canada’s constitution from the British Parliament. Because Canadian governments had never man- aged to agree on a domestic process for amending the constitution, it remained a British statute for half a century aft er the 1931 Statute of Westminster granted independent self-governance to the dominions of the British Empire. This situation was increasingly untenable for a mod- ern nation-state, particularly for the francophone province of Quebec, where the spectre of British colonial domination was especially galling. Prime Minister Trudeau imagined that patriation, an amending for- mula, and a constitutionally entrenched charter of rights would engage Quebec more fully in the Canadian federation and articulate a national vision of Canada through the shared values of liberal rights. Throughout the 1970s and in 1980, Trudeau and the provincial premiers tackled this agenda, but mutually agreeable terms proved elusive. In October 1980, therefore, Trudeau threatened to act without the provinces – to patriate the constitution unilaterally. This gambit was ultimately blocked when, in September 1981, the Supreme Court of Canada handed down its rul- ing on the Patriation Reference, holding that while a unilateral action would not be illegal, it would off end a constitutional convention requir- ing substantial provincial consent in order to secure a constitutional amendment. That ruling forced Trudeau back to the bargaining table in one last, and not especially hopeful, eff ort to realize his constitutional ambitions. The constitutional negotiations of 2–5 November 1981 were, on the surface, a classic example of executive federalism, with First Ministers Sample Material © 2015 UBC Press Looking Back on Patriation and Its Consequences 5 debating in front of television cameras while their offi cials negotiated in the corridors of Ottawa’s National Conference Centre. Of course, the negotiations were infl ected by the long-standing animosity between Trudeau and Premier René Lévesque and doubt about whether terms could be found that Quebec’s separatist premier would ever accept. However, seven other provincial premiers also resisted Trudeau’s agenda, and, along with Quebec, had formed the “Gang of Eight” provinces to oppose many aspects of the federal government’s unilateral patriation initiative. Agreement seemed unlikely, and never more so than when the prime minister proposed a referendum on the amending formula and on a charter of rights as a way of breaking the deadlock. The premiers were well aware that the Canadian public supported a charter, and they worried that Trudeau’s appeal to the people would undermine their own desire to protect provincial autonomy and parliamentary supremacy. As the conference progressed, the search for common ground included the so-called Kitchen Accord discussions among federal minister of justice Jean Chrétien and the attorneys general of Saskatchewan and Ontario (Roy Romanow and Roy McMurtry), as well as a proposal from Premier Peckford of Newfoundland. During the night of 4 November, premiers and offi cials from Alberta, Saskatchewan, Newfoundland, and British Columbia gathered to work on these terms and develop a new proposal. Representatives of all of the remaining provinces except Quebec were informed of the developments over the course of those late hours, while Quebec learned of the new proposal only at a premiers’