Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. The term is based upon the word repatriation, since critics of the use of the word "repatriation" pointed out that the constitution could not "return" to Canada, as it was not formulated in Canada in the first place. Thus the term "patriation" was coined as a word meaning "to make something part of one's own nation."

Canada was until 1982 governed by a constitution that was a British law and could be changed only by an Act of the British Parliament. Patriation thus specifically refers to making the constitution amendable by Canada only, with no role for the Parliament of the United Kingdom to play in the amending process. Hence, patriation is associated with the adoption of the Canadian amending formula, and the corresponding acquisition of full sovereignty.

Early attempts

From 1867, the Constitution of Canada was primarily contained in the British North America Act, 1867 and other British North America Acts, which were passed by the Parliament of the United Kingdom. The constitution could only be changed by a further Act at Westminster. Several Canadian Prime Ministers, starting with William Lyon Mackenzie King in 1927, had made attempts to domesticize the amendment formula, but could not obtain agreement with the provincial governments as to how a new amending formula would work. Thus, even after the Statute of Westminster had granted Canada and other Commonwealth nations some independence in 1931, Canada requested that the British North America Act, 1867 be excluded from the laws that were now within Canada's complete control to amend.

This, however, did not stop continued negotiations between federal and provincial levels of government in Canada to develop a new amending formula in which the United Kingdom would have no part. In the 1960s, efforts by the governments of Prime Ministers John Diefenbaker and Lester Pearson culminated in the Fulton-Favreau formula, but without Quebec's endorsement, the patriation attempt failed.

In 1968, Pearson was succeeded by Pierre Trudeau, who also advocated patriation. He made several attempts, including with the Victoria Charter in 1971 and more proposed amendments in 1978.

Patriation achieved

Patriation was given a new impetus after the 1980 Quebec referendum, in which Trudeau promised a new constitutional agreement if the province voted "No" to sovereignty-association. Trudeau found new allies in Premiers Bill Davis (Ontario) and Richard Hatfield (New Brunswick). However, there was disagreement over Trudeau's proposed Charter of Rights, which the other eight provinces opposed as encroachments on their power. The eight provinces were Quebec, Nova Scotia, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, and Newfoundland.

Soon the other eight premiers came to an agreement, and submitted their own plan for a constitution, without a Charter of Rights; and with an "opt out" clause for federal programs with equivalent funding given to the province(s). They would be dubbed the "Gang of Eight" by the media. Surprisingly included among them was René Lévesque, because it meant Lévesque was refusing the traditional Quebec demand for a veto power over future constitutional amendments. Lévesque was not trusted by many in the group until he signed the document, and many of the "Gang's" later problems would be attributed to the fact that Lévesque thought the agreement was a final one when he signed it, not a starting point for negotiations as the other premiers understood it.

Trudeau rejected the proposed document out of hand, and then threatened to take the case for patriation straight to the UK Parliament, "…[without] bothering to ask one premier." The "Gang" soon appealed to the Supreme Court of Canada.

The Patriation Reference

The court ruled (for the first time, on live television) that the federal government had the right, by letter of the law, to proceed with the unilateral patriation of the Constitution (The decision was 7 to 2 in favour). However, by a different 6 to 3 majority, the court said that the Constitution was made up as much of convention as written law, and ruled that a unilateral patriation was not in accordance with constitutional convention. Although the courts do not enforce constitutional conventions, but only laws, the message was clear that agreement by a "substantial" number of premiers would be required. This number was not defined.

The decision was controversial, and a loss for the "Gang." Lévesque would later remark, "In other words, Trudeau's goals might be unconstitutional, illegitimate, and even 'go against the principles of federalism,' but they were legal!" Trudeau, in his memoirs, paraphrased the court as saying "that patriation was legal, but not nice."

The Conference

The decision set the stage for a meeting amongst all premiers and Trudeau in Ottawa, in November 1981. After two days of meetings came to a stalemate, Trudeau pitched an idea to Quebec Premier René Lévesque: that they patriate the Constitution as it was but continue debates for two years and maybe even have a national referendum on certain issues. René Lévesque, feeling threatened that he would be cast as "undemocratic" (especially after his recent referendum) agreed with Trudeau on the issue. Their respective memoirs have very different stories on the conversation, although the two books agree that both men agreed to such a referendum, and that Trudeau was, in effect, lying to Lévesque - although Trudeau is not quite so straightforward in saying it as Lévesque.

The other seven opposition premiers were startled: Canadians nationwide were mostly in agreement with Trudeau on the issue, and were tired of the constant constitutional talks. A referendum would surely give him what he wanted with the backing of the people, undermining provincial powers. Even though Lévesque would later back off of the referendum proposal, saying it looked as though it was "written in Chinese," Trudeau had succeeded in breaking up the Gang of Eight. Lévesque went to sleep in Hull, Quebec for the night, telling the other premiers to call him if anything happened.

The Kitchen Accord

That night, November 4, 1981, Attorney General Jean Chrétien met with the Attorney General of Saskatchewan (Roy Romanow) and Attorney General of Ontario (Roy McMurtry) in the kitchen of Ottawa's venerable Chateau Laurier hotel. The premiers agreed to get rid of the "opt out" clause, while Chrétien reluctantly offered the Notwithstanding Clause on the Constitution. Quebec Premier Lévesque had opted not to stay at the Chateau Laurier, preferring a bed on the Quebec side of the Ottawa River. Lévesque and his people thus remained ignorant of the deal being cooked up in the hotel kitchen. This has been interpreted ever since in Quebec as being "stabbed in the back". Hatfield and Davis agreed to the compromise and told Trudeau that he should take the deal. Trudeau accepted what would be called the "Kitchen Accord". The men at the table that night became known as the "Kitchen Cabinet."

The next morning, Lévesque walked into the premiers’ breakfast and was told a deal had been made. Lévesque refused to agree to the deal and left the meeting. Quebec announced on November 25, 1981, that it would veto the deal. However, the Supreme Court issued a ruling on the matter on December 6, 1982, stating that Quebec had never held such veto powers. Until the Quebec Liberals came to power in 1985, every law passed in Quebec used the "Notwithstanding Clause."

The events were very divisive in Canada. Many Québécois saw the deal as the English-speaking premiers stabbing Quebec in the back, which would prompt many Quebec nationalists to call it the "Night of the Long Knives." Many in English Canada saw Lévesque as trying to do the same to the English-speaking premiers by accepting the referendum. Among those was Brian Mulroney, who said that "[b]y accepting Mr. Trudeau's referendum idea, Mr. Levesque himself abandoned, without notice, his colleagues of the common front." Jean Chrétien's role in the negotiations made him almost universally reviled among sovereigntists.

With this agreement, the Canada Act 1982 was therefore approved by the governments of the United Kingdom, Canada, and all provinces save Quebec. The Canada Act contained the Constitution Act 1982, which included an amending formula involving only Canadian governments. Section 2 of the Canada Act, meanwhile, plainly states that no subsequent UK law "shall extend to Canada as part of its law."

Elizabeth II, the Queen of Canada, who proclaimed the patriated constitution in Ottawa in 1982, was aware of the rift Quebec's exclusion had caused. Thus, being aware that this was the first time in Canadian history that a major constitutional change had been made without the Quebec government's agreement, the Queen demonstrated her position as head of the whole Canadian nation, and her role as conciliator, by privately expressing to journalists her regret that Quebec was not part of the settlement.

Legal questions

As constitutional scholar Peter Hogg has noted, some might think that, since the Canada Act 1982 is British as well as Canadian law, the UK could theoretically repeal it and declare its laws to be binding in Canada. Hogg, however, disputes this view, noting that since Canada is now sovereign, the Supreme Court of Canada would find a British law supposedly binding in Canada to be just as invalid in Canada "as a law enacted for Canada by Portugal."

References

1. Pierre Trudeau, in his essay on the Quebec Referendum, regarding the curious and distasteful use of this description, remarked: "The 'Night' in question is of course that of the so-called "Long Knives," a label shamelessly borrowed from Nazi history by separatists suffering from acute paranoia." Originally published in the Montreal Gazette, Feb 3, 1996.
2. The Canadian Royal Heritage Trust: Elizabeth II, Queen of Canada
3. Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.