In 1981, Canada reached a milestone in its political history: the House of Commons and Senate issued a joint statement to Queen Elizabeth II requesting the patriation of the Constitution of Canada. This move, which was both symbolic and political, enabled Canada to achieve full independence from the British monarchy after a political and legal saga lasting 115 years, whose impact is still felt strongly today on the political scene. Over the years, the unresolved matter of the Constitution has become the arena for an eternal battle between the forces of diversity and unity that Canadian society revolves around. Let’s explore the reasons why.
What Is a Constitution?
By definition, a constitution is a nation’s political and legal foundation. Our Constitution states the principles and common goals our society aspires to and also sets rules establishing and guiding relations between our nation and its governments. It defines our main political and legal institutions (House of Commons, Senate, Supreme Court, provincial legislatures) and explains how they function. It indicates how laws are passed and enforced, how power is shared between the federal and provincial governments and how courts and political institutions are accountable to Canadians. In addition, many laws with a constitutional dimension (like the Official Languages Act) help our nation as a whole to evolve.
Key Constitutional Moments
Before 1982 (the year our Constitution was officially patriated), Canada’s constitutional principles were contained in the British North America Act (BNA Act), which the British Parliament passed in 1867 to unite the British colonies in North America in a single entity. Although drawn up by the Fathers of Confederation, this constitutional document didn’t allow Canadians to amend its content. Only the British Parliament was permitted to do so because the Fathers couldn’t agree on a way to amend the Act of 1867. As the years went by, Canadians wished to have more control over their destiny as a nation and no longer wanted to go through London to amend and manage the framework for their own laws and policy.
The history of the Canadian Constitution actually began in 1864 in Charlottetown, Prince Edward Island. Delegates from P.E.I., New Brunswick, Nova Scotia and the Province of Canada (Quebec and Ontario) proposed, on Sir John A. Macdonald’s initiative, to unite the British colonies of North America within a federation. In other words, the colonies would be grouped together and overseen by a central government that could manage their common interests like borders, defence, transportation routes and currency.
At a second meeting held soon after in Quebec City, the delegates adopted the 72 resolutions making up the British North America Act. In 1866, delegates from the Province of Canada, Nova Scotia and New Brunswick travelled to London to draw up the official version of the British North America Act, which would establish Canadian Confederation.
British North America Act
In 1867, the British Parliament granted the request of its North American colonies and passed the British North America Act. The foundations were laid for the Canada we know today. The Act united the colonies of the Province of Canada (Quebec and Ontario), New Brunswick and Nova Scotia within a federation. At the same time, the Act gave the “dominion” a federal government and provided the colonies with separate provincial legislatures (shared jurisdictions and powers). The Fathers of Confederation first chose the name the “Kingdom of Canada,” but because British officials objected, they opted instead for the Norman term “dominion,” which appears in Psalm 72 of the Bible (“He shall have dominion also from sea to sea, and from the river unto the ends of the earth”).
London, however, reserved the exclusive right to amend the terms of the Act. As for the provinces, they obtained the right to amend their own constitutional framework, except for the responsibilities of the lieutenant governor. The Act was the fourth constitution for the North American colonies after the Quebec Act (1774), the Constitutional Act (1791) and the Act of Union (1840).
In truth, the colonies united to guard against the threats they posed to one another. In a federated system, the French-speaking Catholic colony of Lower Canada (Quebec) was protected from the English-speaking Protestant majority, which had been a threat to its culture, language, civil law system, religion and education system. This protection came about because the federated system gave participating colonies a legislature (parliament) and recognized their differences.
These were the same reasons prompting English-speaking Protestants from Upper Canada (Ontario) to join the federation. They feared, contrary to Lower Canada, that French speakers would dominate their political and social institutions. As for the Atlantic colonies, they were afraid of being absorbed by the Province of Canada (Quebec and Ontario), a region foreign to them. Furthermore, for London and colonial authorities, this union provided good protection from the economic attraction of the United States and the Americans’ expansionist designs on Canada.
In the years following Canadian Confederation, several more colonies joined the ranks of Canada. In 1870, Canada’s Parliament created the province of Manitoba. In 1871, British Columbia came aboard with the promise it would soon be linked by railway to the rest of the country. Two years later, in 1873, it was Prince Edward Island’s turn to join Canada. In 1875, Parliament passed the Northwest Territories Act. In 1880, London transferred its Arctic possessions to Canada. Yukon became an autonomous territory in 1898, and the provinces of Saskatchewan and Alberta were created by Parliament in 1905. Finally, Newfoundland was added in 1949.
In the years before the First World War, Canada grew in stature as a nation and took its place on the world stage by creating a department of external affairs, by refusing to take part in the colonial wars occupying the British Empire and, above all, by joining the League of Nations and the International Labour Organization in 1919.
In 1926, the members of the Imperial Conference of the British Empire adopted the Balfour Declaration, which granted autonomy to the British dominions (Canada, Newfoundland, Australia, South Africa, Ireland and New Zealand) and abolished any subordination to Great Britain.
Encouraged by this recognition, Canada’s Parliament resolved in 1927, at the instigation of Justice Minister Ernest Lapointe, to patriate the Constitution so that it could be amended without London’s consent. So began a long political and legal dispute that would drag on for 55 years before Ottawa and the provinces (except Quebec) finally agreed on an acceptable formula for patriating and amending the Constitution.
Statute of Westminster
On December 11, 1931, the Statue of Westminster officially granted independence to the dominions. London gave its dominions powers over their constitution and the amendment of British laws that once governed them. But in Canada, after the failure of a second federal-provincial conference on developing an amending formula, the government of Canada requested that its constitution be exempt from the statute and that London reserve the power to make amendments pending an agreement. In 1935, a third conference came to naught. Provincial and federal officials were still unable to reach an agreement. This impasse would last a very long time.
In 1949, Canada’s Parliament carried out a partial patriation of the British North America Act. This enabled amendments to the Canadian Constitution on domestic matters, but maintained London’s control over fundamental changes. In addition, the Supreme Court of Canada became the highest court in the land and was declared fit to rule on constitutional disputes in Canada in lieu of the Judicial Committee of the Privy Council.
From 1960 to 1978, Canada held several constitutional conferences and made various attempts to agree on a patriation process and an amending formula—but to no avail. The Fulton-Favreau Formula, for example, was suggested in 1961. In 1968, the Constitution underwent a full review that led to the Victoria Formula. This complex amending proposal required the consent of any province containing or having contained a quarter or more of Canada’s population, in addition to the consent of at least two Atlantic provinces and at least two Western provinces containing half or more of the total Western population. The proposal also included language rights and guarantees inherent to the Supreme Court in the Constitution.
In 1971, the prime minister and premiers brought these proposals together in a draft constitutional charter (Victoria Charter), which they submitted for approval to all the provincial legislatures. In Quebec, the Victoria Charter met with strong resistance, and Premier Robert Bourassa refused to recommend to Quebecers a charter he considered detrimental to Quebec. In 1976, Prime Minister Pierre Trudeau condemned this position and threatened to proceed with the unilateral patriation of the Canadian Constitution. The same year, the Parti québécois took power in Quebec.
In 1979, the Pépin-Robarts Commission tabled a report with 75 recommendations to resolve the constitutional impasse. The commission proposed asymmetrical federalism, which would grant the provinces further powers, notably on language rights. But Ottawa rejected this option and permanently shelved the Pépin-Robarts Report.
The Matter of Quebec
In 1980, the Parti québécois, frustrated by the constitutional impasse and the flat-out rejections of its demands for cultural and political recognition, proposed independence to Quebecers. This bid for succession coupled with sovereignty-association was voted on by the Quebec people during a particularly harrowing referendum.
On the eve of the referendum, Prime Minister Pierre Trudeau delivered a rousing speech vowing to renew federalism in-depth if Quebecers chose to remain within Canada.
His call was apparently heard and 59.1% of Quebecers rejected the sovereignist option. Saddened by this bitter defeat, Premier René Lévesque addressed thousands of sovereignists at the Paul Sauvé Arena and uttered these famous words: “If I understand right, you’re telling me, ‘Until next time!’ ”
Patriation of the Constitution
In 1980, faced with the ongoing constitutional impasse, Prime Minister Pierre Trudeau tabled a resolution in the House of Commons pertaining to a joint address by the Senate and the House of Commons to Queen Elizabeth II with the aim of unilaterally patriating the Canadian Constitution with a Charter of Rights and Freedoms enshrined in it.
In April 1981, the provinces, except for Ontario and New Brunswick, signed an agreement between them on a patriation process and amending formula (Vancouver Formula) to offset Ottawa’s plans to act alone in patriating the Constitution. On April 28, Manitoba, Quebec and Newfoundland went before the Supreme Court to contest Ottawa’s unilateral patriation of the Constitution. In September that year, the Supreme Court held, in a 7-2 ruling, that Ottawa’s plans ran contrary to constitutional conventions requiring the provinces’ consent for any change to their powers.
“One Last Time” Conference
Before proceeding unilaterally to patriate the Constitution, Ottawa organized a “one last time” constitutional conference as a final attempt to win the support of a majority of provinces for its patriation plan. During the night of November 4-5, nine provinces agreed in the Quebec delegation’s absence to a constitutional proposal and an amending formula. The unified front of eight provinces against Ottawa was shattered.
René Lévesque learned the next morning that an agreement had been signed without him. This move isolated Quebec and soured relations between Quebec City and Ottawa. The agreement reached during what is sometimes called the “night of the long knives” borrowed heavily from the Vancouver Formula, but dropped the provinces’ right to financial compensation if they opted out of a constitutional amendment.
Proclamation of the Constitution Act
On April 17, 1982, the Constitution Act (rejected by Quebec) was signed into law by Queen Elizabeth II in an official ceremony in Ottawa. The Constitution of Canada would include, in addition to the Act of 1867, a Charter of Rights and Freedoms and an amending formula.
The amending formula states that most constitutional changes require approval of two-thirds of the provinces whose citizens represent half or more of Canada’s total population. Approval by all provinces is nevertheless needed for amendments on representation in the House of Commons, official languages, the Supreme Court and the amending formula for the Constitution.
Meech Lake Accord
After the Conservatives took power in Ottawa in 1984, Prime Minister Brian Mulroney gave a historic speech in Sept-Îles promising to reach an agreement that would bring Quebec into the Constitution Act of 1982 with “honour and dignity.” Quebec, which was sympathetic to the Conservatives, laid out five conditions for supporting the Constitution Act, including recognition of a distinct status for the province within Confederation.
On April 30, 1987, the prime minister and premiers accepted these conditions. The same year, the broad terms of the Meech Lake Accord were adopted in Ottawa after long hours of debate. However, the accord still needed to be ratified (approved by majority vote) by all the provincial legislatures and the House of Commons within three years.
Quebec’s conditions for endorsing the Constitution Act of 1982 were:
1. Recognizing Quebec as a distinct society
2. Increasing Quebec’s powers over immigration
3. Giving Quebec some input in appointing Supreme Court judges
4. Limiting federal spending power
5. Recognizing Quebec’s right to veto on constitutional changes
During the three years, support for Meech from English-speaking provinces steadily eroded. Manitoba was the first to object to the accord after the Quebec government invoked the notwithstanding clause to uphold Bill 178 on outdoor signs. Next came Newfoundland when Clyde Wells, its Liberal premier, objected to Meech along the same lines. Both refused to hold the free vote scheduled in their legislatures on the accord.
In May 1990, a band of Quebec MPs led by Lucien Bouchard walked away from the Conservative Party. They would later form the Bloc québécois. On June 22, 1990, the three-year deadline expired, killing the Meech Lake Accord for good. Robert Bourassa announced he would no longer negotiate with the other premiers and would await a valid offer from Ottawa before reopening constitutional talks.
On September 4, 1990, Quebec set up the Bélanger-Campeau Commission on the province’s constitutional future. Its 36 members attended five months of public hearings on the matter. They received over 600 submissions, most of them advocating the outright sovereignty (secession) of Quebec. On March 27, 1991, the commission issued its report.
With the rest of Canada failing to understand Quebec’s aspirations, the commission recommended that the Quebec National Assembly enact legislation on Quebec’s political and constitutional future that would require a referendum on sovereignty in June or October 1992. Two parliamentary commissions were also proposed in the event the yes side won the referendum (one to study the process of achieving sovereignty and the other to study any partnership offer made by Canada).
The failure of Meech, which Quebecers saw as a clear message from the rest of Canada, sparked a great revival of nationalist sentiment in Quebec. Even the historically federalist Quebec Liberal Party adopted the Allaire Report (in March 1991). A true attack on Canada’s federal system, the report proposed a major transfer of powers whereby Quebec would be granted exclusive control over 22 areas of jurisdiction.
Under the federal reform proposed, other than nine areas of shared jurisdiction, Ottawa would keep exclusive control over only five areas (defence, tariffs, currency, equalization, management of public debt). The reform also included abolishing the Canadian Senate and adopting a constitutional amending formula requiring the approval of at least half of Canada’s population, with Quebec necessarily included.
In March 1992, former prime minister Joe Clark, appointed by Brian Mulroney to resume constitutional negotiations, called for a new round of multilateral negotiations between Ottawa, the nine English-speaking provinces, the two territories as well as four Aboriginal leaders. They arrived at a proposal on July 7, 1992, that would grant the essence of Meech to Quebec, a representative Senate for the Western provinces and a right to self-determination for Aboriginal peoples.
Quebecers remained cautious about this so-called historic accord. Ottawa announced in August 1992 that a national referendum would be held on ratifying the constitutional agreement. On October 26, the Charlottetown Accord was rejected by six provinces (including Quebec with 56% of voters saying no).
Second Referendum on Quebec Sovereignty
Meanwhile, the sovereignty option, fuelled by the constitutional failures of the previous years, was gaining in popularity in Quebec. In 1994, the Parti québécois was swept into power. Premier Jacques Parizeau promptly tabled draft legislation on Quebec sovereignty. In June 1995, sovereignist forces (including the Parti québécois, the Bloc québécois and Action démocratique du Québec) shifted into high gear. The second referendum proposed to Quebecers a sovereign Quebec coupled with an economic and political partnership negotiated with the rest of Canada.
On October 30, 1995, sovereignty was rejected by a slim margin (50.6% voted no and 49.4% voted yes). Voter turnout for the referendum topped 93%. The day after the defeat, Jacques Parizeau stepped down as premier. The head of the Bloc québécois, Lucien Bouchard, took over as Parti québécois leader.
A few days after the referendum, Prime Minister Jean Chrétien announced that had the yes side won with a very slim majority, he would have deliberately blocked Quebec’s secession process. Lucien Bouchard responded by saying that he would hold a third referendum on sovereignty once “winning conditions” were met and that if Quebecers had to accept a no at 50.6%, Ottawa would have to accept a yes with a similar percentage.
Since the second referendum on sovereignty was only narrowly defeated, the nine premiers of the English-speaking provinces decided to take action before Quebec left Canada for good. They met in Calgary in 1997 and reopened constitutional talks in an effort to find a proposal that would bring Quebec back into the constitutional fold. Quebec Premier Lucien Bouchard refused to attend. In September 1997, the nine premiers submitted the Calgary Declaration to the provinces and Ottawa for approval. The declaration recognized Quebec’s “unique character” within the Canadian Confederation while asserting the equality of all the provinces.
But in Quebec, the Parti québecois government rejected the agreement, saying it had no teeth and contained nothing concrete about powers or recognition of Quebec culture and society. Every provincial legislature passed the declaration except Quebec’s. The problem of Quebec remained unresolved.
On August 20, 1998, the Supreme Court ruled on Quebec’s right to unilaterally declare its independence. The highest court in the land held that, under the Constitution and international law, Quebec could not decide unilaterally to separate. However, the Supreme Court added that Ottawa would have a constitutional obligation to negotiate with Quebec should a clear majority vote for sovereignty in a referendum.
The Supreme Court also stated that if negotiations failed or if Ottawa or the rest of Canada showed ill will, Quebec would have the option of unilaterally declaring its independence even though the move would be unconstitutional. The success of secession under these conditions would then depend on the international recognition Quebec would receive. The Supreme Court stressed that such recognition “would not, however, provide any retroactive justification for the act of secession, under the Constitution of Canada or international law.”
During negotiations on a social union, Quebec again cut itself off from the other provinces when it refused in February 1999 to sign an agreement that it called a step backward for Quebec. Approved by nine provinces, the Social Union Framework Agreement limited Ottawa’s right to unilaterally create new programs related to social assistance, education, health and social services without the consent of the majority of the provinces. Also granted to the provinces was the right to opt out of federal programs with compensation.
Ottawa, however, got around the new provisions by reserving the right to create programs providing direct assistance to citizens, like the millennium scholarships. As for Quebec, it wanted the federal government to withdraw completely from jurisdictions specific to the provinces and demanded that Ottawa instead turn over to the provinces the money it spent on areas of provincial jurisdiction.
A New Territory
On April 1, 1999, the Canadian government officially inaugurated a new territory, Nunavut. Located in the northernmost part of Canada, east of the Northwest Territories, Nunavut has its own legislature, elected members and institutions and is governed in the same manner as the Northwest Territories and Yukon. About 20,000 people live in this vast territory.
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