VIU Speech

Saturday Speaker Series

Elder College, Vancouver Island University

Nanoose Community Centre, Vancouver Island.

September 21, 2019

Honourable A. Brian Peckford P.C. LLD

What Really Happened When Our Constitution Was Patriated

Background

I have been interested in history from an early age. In fact it was my best subject in terms of grades in my final high school year . At University I studied both the classics —Greece and Rome and Medieval and Renaissance History.

And to this day I enjoy reading it; I have just been reading the book entitled The Dynasties of China and another one entitled The History of the English Speaking Peoples Since 1900.

But bitter experience has taught me to be highly skeptical of the accounts of various events.

The seminal event was the The Of The Canadian Constitution , November , 1981.

It was a field day for lawyers and Canada has plenty of them. For example , among the First Ministers at the time the majority were lawyers : there was the Prime Minister , and six of the ten Premiers : Peter Lougheed, Allan Blakney, Sterling Lyon, William Davis , Richard Hatfield and John Buchanan . Bill Bennett was a former businessman, Rene Levesque a former journalist, Angus McClean , a former farmer/ Air Force Officer, and yours truly a lowly high school teacher.

This idea of Canada having its own Constitution and hence having it amended here in Canada rather than having to refer back to the UK parliament has been a live issue for a long time. As a matter of fact efforts in this regard began in 1927. Again in 1931, 1935-36, 1961, 1964, 1971, and 1978-79.

So what we were about in 1981 was hardly a novel activity. Yet a contentious one .

Pierre Eliot Trudeau was interested in the idea again and of adding a Charter of Rights and Freedoms as well. Of course, the country already had a Bill of Rights that had been introduced in the late 1960 ’s by Prime Minister John G. Diefenbaker . However, it had its flaws since some would say it could be amended at will by the Federal Government , applied only in Federal matters , and was being interpreted by the Supreme Court in a narrow manner which failed to give protection to individuals. However, of interest to many now might be the fact that on the positive side the Bill of Rights continued the right to life idea and the protection of property rights .

This partriation effort was given added impetus because of the fact that Mr. Trudeau had promised in the referendum of 1980 the vague notion of ‘ renewed federalism’, viewed in Quebec at the time as a major undertaking by the Prime Minister to accommodate some of Quebec’s demands.

And so it came to pass that the Federal Government and he Provinces became engaged in a seventeen month process of seeing whether an agreement could be reached to Patriate the Constitution and simultaneously add a Charter of Rights and Freedoms.

From the outset many Provinces had misgivings in that there was not a lot of trust by many of them in the Prime Minister intentions given his inclination to move towards a stronger Federal Government , hence inevitably weakening powers of the Provinces . Of course , Quebec would oppose the slightest moves in this direction. But Quebec was not alone . The western Provinces were wary of the prospect of having their power over natural resources weakened . Additionally, there were concerns over issues of property rights and education. In Newfoundland and Labrador’s case we were faced with a fishery that was almost all Federally controlled, a potential offshore oil and gas industry over which the Trudeau Government had indicated it wanted to control and an existing Power Contract with Quebec that denied Newfoundland any share of the hundreds of millions of dollars of economic rent that was annually going to Quebec. Therefore, Newfoundland and Labrador was naturally inclined to side with Quebec and the western provinces in skepticism towards the Federal Government as the talks began.

Of course , it became clear early on that this was to be a very difficult process . Given that the Federal Government intended to not just patriate the Constitution with an amending formula but also to have many provisions in a new Charter that had the potential to impact the powers of the Provinces, there was great concern . There developed ,therefore , a real difference on how this whole process was being viewed, leading to the formation of two real divisions : the Federal Government and the Provinces of Ontario and as one faction and the other eight Provinces as the second faction, erroneously called by the press the ‘gang of eight.’

It should be noted that right from the start the Press were almost totally on the Federal Government’s side. Hence, the ‘gang of eight ‘ designation was not surprising to many of us who were wary of a Federal Government that signalled in many of its actions a viewpoint of a stronger Federal Government and weaker Provinces. This was also confirmed many times in the numerous talks among Federal Provincial Ministers and the many public servants involved.

It is important when looking back at this time , in 1980 , that the Federal Government had proposed a massive overhaul of energy policy whereby the oil and gas resources of the Provinces ( clearly under Provincial Jurisdiction) would be taxed by the Federal Government , the proceeds to be part of a giant redistributive plan reminiscent of the best of socialist policies. In addition , one must recall that other unilateral Federal actions were being undertaken at that time under the umbrella of Regional Economic Development actions , many in areas of Provincial jurisdiction.

So it is fair to say that the skeptical nature of many of the Provinces on this new patriation proposal was rooted not in some inherent dislike of the people who were then a part of the Federal Government or some other prejudice or theory of Government but rather in ‘on the ground federal Policies ‘ that were attempting to fundamentally change the nature of the federation.

The Federal Government seemed a little surprised when through the negotiations the Provinces also had their own items for constitutional consideration . Hence, the agenda became more that just an amending formula and a Charter Of Rights and Freedoms.

Hence, in June of 1980 all parties agreed on a twelve point agenda , not just Patriation, amending formula and a Charter. This new agenda was then to be discussed by a Committee of Ministers and Officials . This led to a First Ministers meeting in September which unfortunately ended without any measurable progress.

Of course, Prime Minister Pierre Trudeau through his Ministers and officials made it clear that thy were not amused with all this Provincial activity and especially with the group of eight and its vocal commentary on constitutional change.

It was not a surprise then to the group of eight when in the fall of 1980 , October 2 to be exact, after the many months of talks , that the Federal Government decided to move ahead unilaterally with a resolution of the Parliament of Canada to patriate the Constitution with an amending formula and a Charter of Rights and Freedoms. The Supreme Court said:

‘The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. ‘

The group of eight were hardly amused at this unilateral turn of events and appealed this unilateral Federal Action to three Courts Of Appeal , Manitoba, Quebec and Newfoundland and the decisions of these courts along with the Federal Government ( through a resolution of parliament) sent the resolution to the Supreme Court to ascertain its constitutionality.

This court’s hearing was on April 28,29,30 and May 1 and 4 , 1981 with the decision issued September 28, 1981.

The decision was momentous !

The Federal Government and Prime Minister Trudeau lost in its efforts to unilaterally change the Constitution of this nation.

The unilateral action contemplated by the Government of Canada was ruled to be unconstitutional .

Many excerpts of the decision could be quoted . The one found on page 67 seems most clear and relevant:

‘In no instance has an amendment to the B.N.A. Act been enacted which directly affected federal-provincial relationships in the sense of changing provincial legislative powers, in the absence of federal consultation with and the consent of all the provinces. Notably, this procedure continued to be followed in the four instances which occurred after the enactment of the Statute of Westminster, 1931.’

Some commentators have referenced that the Federal action was legal . But that is a technicality . The Constitutionality of a measure trumps a legal technicality. And that’s what the court said. Even the Federal Government’s later written statements blatantly played down the unconstitutionality of the matter , questioning what the court had actually ruled . Just listen to a Federal Government explanation on one of their websites:

‘On September 28, 1981, the reached a majority conclusion that the Federal initiative was legal; however it expressed reservations about its legitimacy on the ground that it would run counter to the conventions and the spirit of the federal system.’

Well , like so much about this story , distortions are many . The Court did not express reservations , it said the federal action was unconstitutional —-period! Here is the Court’s own words:

‘We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required for the passing of the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the " and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense.’

What some had forgotten ( or thought somehow would now be overlooked by the court ) was that the the Constitution of Canada consisted of both a written part and a convention or custom part and both is what constitutes the Constitution of the nation. Listen to the Court

‘The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country.’

And so it came to pass to the surprise of the national press and to the consternation of the Federal Government that if patriation and a charter were to happen it had be through the Provinces not by trying to bypass or better said override them .

The big three days

And so the Prime Minister , tail between his legs , was led back to the negotiating table by this decision if he wished to patriate the constitution and wished a Charter of Rights.

This led to an agreement among all parties that a final effort would be attempted to reach a deal on patriation and a charter through a meeting in on November 3 to the 5.

Now, this a bare bones of an outline . It is important , though, that the crucial three days and the final agreement be given the context it deserves so that a better understanding is possible . Hence, why this background.

These were three crucial days.

It should be noted that the months of talks leading to this moment there were many national organizations who 9lobbied the first ministers on various aspects of what was understood to be the main componentsto to form part of the charter —minority language rights, property rights , aboriginal concerns, resource powers, —for example.

Additionally, there had developed a heightened sense that the First Ministers must not fail. This was driven largely by the Press and the Federal Government .But it was also a test of real Federalism, this having now been reaffirmed by the Supreme Court in its decision.

The first day of the conference saw a repeat of the positions with some slight flexibility. A secret meeting that night with the Prime Minister by a three person committee of the group of eight and Premier Davis of Ontario produced little. A proposal produced largely by was presented by the Committee. The Prime Minister was cranky, and arrogant and although the Provinces’ showed some flexibility , the Prime Minister did not.

So the second day , November 4 was another disappointment although Saskatchewan offered another proposal as a follow to the BC proposal of the night before .

That afternoon I was beginning to sense that there might be a group of ideas that could find favour and spoke to a number of Provinces about it. No opportunity presented itself that afternoon to present these ideas.

Late that afternoon and early evening my delegation and I began to further explore these ideas of the afternoon. We wrote up a three page proposal and in phone talks with Saskatchewan that early evening we agreed that two of my advisors would meet Saskatchewan, BC, and Alberta at the Saskatchewan suite at 9:30 to further discuss , to see whether this proposal had merit especially given the failed talks of the past two days. I instructed my advisors that If progress seemed likely to call me and I would join the group.

Well, the initial group thought the proposal had merit and Nova Scotia, and PEI were contacted and Premiers Buchanan and McClean joined the meeting with their Ministers. So now we had four Premiers , Saskatchewan, Nova Scotia , Prince Edward Island and Newfoundland in attendance and their Ministers and advisors. Additionally , Alberta was represented by the Deputy Minister of Intergovernmental Affairs on instructions from his Premier and British Columbia by its Deputy Minister of Intergovernmental Affairs instructed by his Minister. Manitoba was not present but attorney general of PEI , Horace Carver, was in phone touch with his counter part in that Province , Gerald Mercier. Quebec was not present but they were contacted but not available in calls to their hotel room. It was later discovered they were across the River ( Ottawa) in Hull for dinner.

So seven of the group of eight were represented .

From around 9:30 to 12:30 the written Newfoundland proposal was discussed and some amendments were made and the group agreed that this amended proposal ( retyped by Newfoundland) should be presented by Newfoundland to the group of eight breakfast meeting already planned for 8 AM the next morning.

The next morning I presented the amended proposal to the group of eight , including Quebec, Premier Levesque attending . Seven Provinces approved the amended proposal from the night before without amendment , Quebec dissenting. I was instructed by the group to present that amended proposal at the scheduled meeting of first ministers later that morning. This I did on invitation from the Prime Minister who had been informed that I had a proposal to make. With some further amendments , the patriation deal was agreed to and signed.

Pretty straight forward says you. And so it was. Then.

Even the Prime Minister himself in interviews with the press acknowledged the process I just described. He said at the time to the Press :

‘It was not of my making," Trudeau conceded, addressing the youngest premier from the youngest province. "The draft that finally brought us to an agreement is the one presented by you this morning."

But within days there arose other stories of a meeting in the kitchen of the Chateau Laurier Hotel where three Attorneys General, from the Federal Government, Saskatchewan and Ontario, who had scribbled on a piece of paper the kernels of what was to become , it was alleged, the Patriation Agreement .

I or my delegation had heard nothing of this as we were shepherding the written proposal through the night of November 4 with the seven Provinces , at breakfast the next morning , November 5 , with eight Provinces or later that morning and afternoon with all the Provinces and the Federal Government present , November 5 , which led to the Agreement. Everyone was working from the documents that Newfoundland had presented . There was no kitchen scraps to be found!

By now, most participants were back home about their business.

But we heard the stories . Discounted them , of course.

Yet, given the momentous nature of what had transpired two wonderful things happened , Independent of each other. I did a taped interview of what had happened the week following the conference and my two trusted competent Deputy Ministers who actually presented the original proposal on the night of November 4 , decided that they should write down what had happened. Both were filed.

Fast forward ——-1999——eighteen years later there appeared in the National Post newspaper an article entitled ‘The Night Of The Long Knives .. Who Dunnit ? “ by Professors Ted Morton and Barry Cooper of the University of Calgary . Here again was the refrain from those fictitious stories of the past similar to the contents of Robert Sheppard and Michael Valpy’s book The National Deal of 1982 , full of inaccuracies and misrepresentations.

But this time we decided to fight back .

And it was then that my Deputy Ministers Abery and Penney responded to the article using their written summary and I using my taped interview . And it was the first time that we knew we had both recorded the events of November 3-5, 1981.

The professors more or less apologized after having denigrated me and the Newfoundland delegation and hence really Newfoundland itself because as they said, how could Newfoundland do something as important as this. And by the way, I was able to discover that there was only one source for their story—Roy Romanov , AG of Saskatchewan who was one of the people pushing the fiction of the kitchen in the Chateau Laurier , he , being one of the alleged participants.

Then in 2011 Ron Graham produced another book on Patriation entitled ‘ The Last Act: Pierre Eliot Trudeau , The Gang of Eight And The Fight For Canada. ‘ He authored a piece on his book that was carried by newspaper to which I responded ( which the Paper thankfully carried) in which I set the record straight , pointing out all the inaccuracies and silly theories in his article/book.

It was at this time in 2011 that I had began writing my own book to set the record straight on a number of issues regarding my time in politics including a significant section on the patriation of the Constitution ( 40 pages) which included releasing for the first time the original documents of the night of November 4 and the day of November 5. The book was published on September 12, 2012.

I had highlighted my intention to publish a book at conferences on Patiation at the University Of Alberta ( November , 2011) in Edmonton and at The University of Quebec ( April, 2012) at Montreal indicating that it would contain important documents of the Patriation which would demonstrate the falsity of the stories in the books of Sheppard/Valpy and Graham and the article of Professors Morton and Cooper. I actually released my taped interview at these conferences , foreshadowing the views to be in the book the next year. Howard Lesson, The Deputy Minister of Intergovernmental Affairs for Saskatchewan , who was a part of the November 4 meeting in his Government’s suite at the Chateau Laurier wrote a book ( Patriation Minutes) at this time that partly corrected the record but also contained some statements that were questionable and personal. And given his close association with Roy Romanov , his Minister and advocate of the Kitchen myth , it lacks the credibility that otherwise should be afforded such a book.

After releasing the book , Some Day The Sun Will Shine And Have Not Will Be No More, in St. John’s on September 12, 2012 I travelled to Ottawa and held a Press Conference in the Parliament Building , releasing a statement that addressed that part of the book dealing with the Patriation. I was interviewed by CBC TV , CTV, and TV Ontario. I referenced Newfoundland’s original documents , those of Premier Lougheed , and the documents of the BC Government .

Glimmer of Sense

There was one lone academic who took an interest in what I was doing, Professor Stephen Azzi of Carlton University . I had written a number of websites on Canadian history trying to correct the erroneous accounts they were carrying . Professor Azzi was the legal advisor for the Canadian Encyclopedia and when he saw my intervention he asked for more information which I willingly supplied . After looking at the record he concluded that yes, Newfoundland had a significant part to play in the Patriation process and that the record should be corrected . This was carried by the National Post Newspaper on September 13, the day after the publication of my book. The headline read ‘

‘Peckford rewrites history with new account of 'Kitchen Accord' to patriate Constitution

Former Premier Brian Peckford has literally rewritten history, substantially revising the story of the 1982 patriation of the Constitution.’

Conclusion

What is most alarming is that something like this could happen in Canada . What is even worse is that it continues right to this day . The was involved this past year in an effort to commemorate a space concerning the kitchen myth. Of course, I objected and the matter was deferred . Evidence , including all the Newfoundland original documents that have been presented , the Prime Minister ‘s word to the press just moments after the deal was consummated, , the documents of Premier Lougheed and of the British Columbia Government , all seemed to fall on deaf ears.

The two books referenced and the article by the professors in the National Post were written by people who were not present at the Patriation , relying on second and third hand accounts and by people who had a vested interest in the myth. In contrast , my book was written by someone who was there and with the original documents to support what really happened, and documents from two Provinces that were intimately involved on the night of November 4.

What is really inexplicable , astounding is that since my book’s publication I have not had one inquiry from anyone concerning the evidence presented in the book —-original Newfoundland documents, the original written statements of two Newfoundland Deputy Ministers, my own transcript of events, the letters to Professors Cooper and Morton , Premier Lougheed’s documents, the British Columbia documents , the Prime Minister’s own words. Not one University ‘s Canadian History or Political Science Department or any Canadian think tanks have been inquisitive enough to want to view the original documents . Trinity Western University, for example, which houses the BC Documents mentioned have told me that there have been only nine requests to read these documents , nine requests since the documents were available at the University in the year 2000. And given confidentiality the origin of these requests is unknown but it would be reasonable that some of these inquiries were by students at that institution. So few inquires to check out my story.

Nor have I been invited anywhere to defend what I have said in the book. I did write many political science departments across the country but not one response. Of course, not one journalist has inquired either, but that is to be expected given the amount of ink they had invested in the mythology, except for The National Post Newspaper coverage of Professor Azzi’s findings . The distorted views of Patriation went all the way to a Justice Of The Supreme Court and who was , believe it or not, an advisor to Federal Government during the Patriation process.

One further note which demonstrates the ongoing confusion that still accompanies a very simple story . In the last few months a self published book entitled ‘ From Democracy to Judicial Dictatorship In Canada: The Untold Story of The Charter Of Rights has appeared authored by there people : Gwendolyn Landolt ,LLB, Patrick Redmond,PHD , and Douglas Anderson ,MA, LLM . In it they acknowledge Newfoundland’s part in the Patriation process and quote Professor Azzi . Yet , they mistakenly had the whole process happening on the morning of November 5, 1981 rather than beginning on the night of November 4 and they had Premier Levesque in his hotel room that night rather than absent from the room—not really small matters as you have seen in this presentation.

I am sure there are many who would say , forget it, its over.

But for me our history is important and fact , I hope , still has some place in it .

I trust that this brief talk will heighten people’s awareness of the necessity in a democracy to be vigilant and critically examine what is reported since without an enlightened populace our liberty and freedoms are in jeopardy.

This story is a tangible reminder by someone still alive about an important event in our history that was distorted , and misrepresented by leaders in academia, leaders in journalism, and leaders in Government . A cautionary tale of the fragility of our democracy , and how easily the truth can be lost.

I want to thank Elder College for inviting me to speak today.

I want to thank those present for attending and by so doing demonstrating their interest in our Country’s history.

Of course, I invite questions and comments.

Thank you for listening .