!e Constitution Act, 1982: the Foreseen and Unforeseen Hon. Barry L. Strayer, Q.C.* “. not exactly what we had in mind.” liott Trudeau. He asked me to develop a position paper on a constitutional bill of rights, initially for use by Cabinet, and then to be elaborated Introduction into a discussion paper in aid of negotiation I started preparations for my #rst constitu- with the provinces for the adoption of a Charter tional conference in an o$ce overlooking Was- of Rights. %e end product, with some modi#- cations, was indeed published in a 1968 position cana Lake nearly forty-seven years ago. I was a 1 young lawyer in the Department of the Attor- paper. In that year I went back to Ottawa on ney General of Saskatchewan. Prime Minister a full-time basis, eventually resigning my uni- Diefenbaker had announced that there would versity post and joining the public service. First be a Conference of Attorneys-General in early in the Privy Council O$ce, and later as Assis- October 1960, chaired by Justice Minister Ful- tant Deputy Minister of Justice, I was heavily ton, to seek agreement on “Repatriation of the engaged in the constitutional discussions which went on intermittently for fourteen years, and Constitution.” As I expressed interest in the 2 conference to the Attorney General, and had which resulted in the Constitution Act, 1982. I recently taught constitutional law for a year at guess it is for this reason that I have been asked the University of Saskatchewan, I was made the to address which of the developments under secretary of the Saskatchewan delegation. %is this Act in the last twenty-#ve years were fore- involved most of the work of research and writ- seen and which were unforeseen. ing position papers and speeches. But it also in- I have chosen three areas which I regard as volved making hotel and travel reservations for the most important elements of the 1982 con- which I claimed no particular skill! Of course, stitutional amendments: namely patriation, a&er four such meetings in 1960 and 1961 we the Canadian Charter of Rights and Freedoms,3 reached no agreement on repatriation, but it and the constitutionalization of Aboriginal and gave me on the job training in constitutional treaty rights. In this article I adopt the analyti- reform. cal framework of that great philosopher Donald A few years later, when I was teaching full Rumsfeld, former Secretary of Defence in the time at the College of Law in Saskatoon and Bush administration, who said of the war in doing some writing in the constitutional #eld, Iraq: %ere are some things we know we know, some things we know we don’t know, and some I was invited to go to Ottawa to help develop 4 a position for the Government of Canada on things we don’t know we don’t know. %is was constitutional reform. My #rst period there was indeed our position regarding our knowledge during the summer of 1967 when I was assigned of the future in launching these constitutional to advise the new Minister of Justice, Pierre El- reforms. Constitutional Forum constitutionnel !" Patriation %is debate continued periodically for the next sixty years in numerous federal-provin- %e term “patriation” is shorthand for the cial conferences at which agreement was never process of transferring to Canada the legal con- reached on an amending formula. %e last of trol of its own Constitution. As is well known, these meetings occurred in September 1980 and when our Constitution was originally enacted it too failed. At that point, the federal govern- by the British Parliament in 1867 as the British ment, led by Pierre Trudeau, introduced a reso- North America Act, 1867,5 it made no provision lution in Parliament which requested the Queen for Canadians themselves to amend it in future: to place before Westminster a request to adopt it was, like any other British statute, amendable an amending formula for Canada and thus sign by Westminster alone. %is accorded with the o( on any future legislative power over Canada. colonial nature of our status as a country, albeit %is initiative was condemned ultimately by the 1867 Constitution gave us most of the ele- eight of the ten provinces, the so-called Gang ments of self-government. In our #rst few de- of Eight, because they had not been consulted cades as a Dominion little thought was given to on the content of the resolution. %ree of these the fact that we had to rely on the British to pass eight provinces (Manitoba, Newfoundland and laws for Canada in respect of our constitutional Quebec) initiated court proceedings in the form arrangements. Over time attitudes changed. of reference questions in their respective courts When Australia was federated by Act of the of appeal, with the full knowledge that the British Parliament in 1900,6 she was given the questions would end up in the Supreme Court power to amend her Constitution; this accen- of Canada. %e references asked if it was le- tuated the problem of our own continuing de- gally correct for the federal government to seek pendence on the Mother of Parliaments. More and obtain a constitutional amendment from importantly, in the opening decades of the Westminster in the fashion that it did. %e Su- twentieth century, particularly a&er Canada’s preme Court ultimately said that it was legally distinguished role in the First World War, there correct in proceeding unilaterally. %e three was in this country a growing sense of Cana- provinces also asked if such a procedure was in dian nationhood. Indeed, a&er the Great War accordance with the conventions of the consti- Britain realized that her senior Dominions, in- tution: that is, was federal unilateralism consis- cluding Canada, had to be recognised as fully tent with accepted past practices? Seven prov- autonomous states. %is position was agreed to inces in the Gang of Eight contended that no at the Imperial Conference of 1926. %e result such amendment could be made in accordance was the enactment of the Statute of Westmin- with constitutional convention without unani- ster, 1931,7 which recognized this position and mous provincial consent. To this the Supreme stated that the British Parliament would no lon- Court replied that while unanimous consent ger legislate for the Dominions. However, an was not required there must be, by convention exception had to be made for Canada in respect or practice, a “su$cient measure of provincial of amendments to our Constitution. %is was consent,” of which there was not here. Only On- at Canada’s request, and that request was made tario and New Brunswick supported the federal because we could not agree among ourselves as initiative.8 Not satis#ed with this, Quebec ini- to how we would amend our Constitution if the tiated an additional reference question arguing British didn’t do it for us. %e federal govern- that even if the agreement of every province was ment, eager to enhance national sovereignty, not required, by past practice and fundamental had been trying since 1920 to get agreement on principle at least the consent of Quebec was al- a domestic amending formula. %e basic issue ways required. %e Supreme Court heard and was always the same: under an all-Canadian rejected this argument.9 amending formula, how many provinces would have to agree with the federal government or A&er the Patriation Reference, in which the Parliament before proceeding with an amend- Supreme Court said that not unanimity but rath- ment to the Constitution? er a “su$cient measure of provincial consent”10 was necessary to bring about the constitutional !' Volume 16, Number 2, 2007 changes contained in the federal proposal, there recent poll, residents of Quebec proved to be the was a further Federal-Provincial Conference most supportive of the Charter a&er twenty-#ve in November 1981 to seek that su$cient mea- years; in fact, 61 percent, a higher percentage sure of agreement on an amending formula, than in any other province, rated the Charter’s the adoption of a Charter of Rights, and a few impact as positive or very positive.12 %is sug- other changes. Eventually all governments but gests that residents of Quebec believe that this Quebec came to agreement. %e changes agreed part of the 1982 Constitution applies in Quebec, upon by the ten governments were adopted in a and that they harbour few feelings of “humili- Joint Resolution of Parliament which was for- ation” about the process that brought it to frui- warded to Westminster where it was adopted in tion.) Second, and more importantly, patriation March 1982, as the Constitution Act, 1982. was e(ected by a procedure approved by the body to which Quebec had on two occasions What the Government of Canada, as the willingly submitted questions as to whether her national government with primary responsibil- consent was essential for any such amendment. ity for national sovereignty, had sought for some Twice the Supreme Court said no. It must be re- sixty years was the completion of our legislative membered that it was not the Government of autonomy, a hallmark of a sovereign state. It Canada which chose that forum to determine sought to do this in a way which would be re- the political legitimacy of its amendment pro- garded as legitimate: in accordance with legal posal, that is to say, to determine the nature of requirements, but also with politically accepted any constitutional conventions governing the practices. What the federal government and the practice of achieving constitutional amend- nine provinces which endorsed the 1981 Accord ment.