Constitution Act, 1982

British Ties

At the time of Confederation, Canada’s Constitution consisted of several acts of the British Parliament in London, England. The most important of these was the British North America Act (now called the Constitution Act, 1867). Also included were a series of British constitutional conventions (widely accepted, unwritten rules). Only the British Parliament had the authority to amend (change) the BNA Act.

With the Statute of Westminster in 1931, Britain was willing to grant full autonomy to the self-governing parts of its empire, including Canada. (See also Commonwealth.) But Canadians were left with a dilemma: If Canada accepted the transfer of constitutional power from Britain, and was free to amend its own Constitution, how would this be done? Should the federal government be allowed to amend the Constitution unilaterally, or was provincial consent required? Did all the provinces need to agree to an amendment, or just a majority? Should all provinces be counted equally, or should larger provinces have more say than smaller ones? And should Quebec have a veto that would allow it to protect the interests of Canada’s French Canadian minority? Until Canadians could settle these questions, the British Parliament retained the authority to amend Canada’s Constitution.

Pierre Trudeau and the Premiers

Generations of Canadian politicians had grappled unsuccessfully with the problem of constitutional change. Since the 1930s, a series of federal-provincial conferences had ended in failure when the prime minister and  premiers could not agree on how the Constitution should be amended. (See also Federal-Provincial Relations.)

The turning point came with the Quebec referendum on sovereignty-association in May 1980. During the campaign, the federal government under Pierre Trudeau promised Quebecers that Ottawa would re-open constitutional negotiations. After the separatists were defeated in the referendum, Trudeau immediately began a process to create a charter of rights and an amending formula (the criteria that would have to be met to make future changes) for the Constitution.

However, Trudeau faced opposition from eight of the ten provincial governments — all but Ontario and  New Brunswick. (See Gang of Eight.) So, he announced that he would proceed alone. He would ask the British to amend the BNA Act according to a resolution from the Parliament in Ottawa. However, Opposition leader  Joe Clark held up the resolution in the House of Commons, and the provincial premiers took Trudeau’s government to court on the matter. In September 1981, the Supreme Court issued a confused ruling. (See Patriation Reference.) Legally, Trudeau could proceed with a resolution of the Senate and the House of Commons. But a constitutional convention required Ottawa to seek substantial provincial support before asking Britain for amendments.

Trudeau returned to the bargaining table one last time. In November 1981, the federal government and nine of the 10 provincial governments (all but Quebec) agreed on a proposal to send to Britain. The new “repatriated” Constitution would now include a formula for future amendments. It would also include a Charter of Rights and Freedoms. Despite being enshrined in the Constitution, the Charter contained clauses that could be overridden for short periods by the federal Parliament or the provincial legislatures. (See Notwithstanding Clause.) Britain approved the deal, which was signed by Queen Elizabeth II on 17 April 1982. (See Patriation of the Constitution.)

What the Act Says: Parts 1–4

The first part of the Constitution Act, 1982 is the Canadian Charter of Rights and Freedoms. It prevents the federal, provincial and territorial governments from infringing on Canadian rights and freedoms. Under the notwithstanding clause, the federal or provincial governments can exempt any law from certain Charter provisions. (See also Constitution Act, 1982 Document.)

The second part of the Act guarantees the existing rights of Indigenous peoples in Canada. These rights, however, are left undefined.

The third part recognizes the federal government’s practice since the 1950s of providing equalization payments to poorer provinces. These payments reduce disparities in services from one province to another.

The fourth part called for the prime minister and premiers to hold a constitutional conference before 17 April 1983 to discuss the rights of Indigenous peoples.

Part 5: The Amending Formula

The fifth part of the Constitution Act, 1982 contains the procedure for amending (changing) the Constitution. Most sections of the Constitution can be changed with approval from the Senate, the House of Commons and the legislatures of at least two-thirds (seven) of the provinces, so long as those provinces contain at least 50 per cent of Canada’s population. This is known as the 7/50 rule.

Unanimous approval from the Senate, the House of Commons and all 10 provincial legislatures is required to amend provisions that deal with: the composition of the Supreme Court; the use of the French and English languages; the right of a province to have at least as many members of Parliament as senators; and the offices of the Queen, the governor general, or the  lieutenant-governors.

The amending formula does not specifically mention abolition of the Senate. In 2014, the federal government asked the Supreme Court about limiting the terms of senators to nine years. The court ruled that changing the makeup of the Senate would require an amendment under the 7/50 rule. The court also said that abolishing the Senate would require the consent of Parliament and all 10 provinces.

Amendments that deal with some but not all provinces (e.g., changing the boundary between two provinces) may be made by the Senate, the House of Commons and the relevant provinces. An amendment can proceed without Senate approval if the House of Commons approves the amendment and then does so again at least 180 days later.

Parts 6 and 7

The sixth part of the Constitution Act, 1982 amends the BNA Act, 1867 to specify that the provincial governments have exclusive jurisdiction over non-renewable natural resources. (See also Distribution of Powers.) The seventh part contains several minor, miscellaneous provisions.

Aftermath

The Quebec government under Premier René Lévesque protested bitterly that Ottawa and nine of the provinces had proceeded without Quebec. Nationalists in the province spoke of “the night of the long knives.” They believed that Quebec had been betrayed by Trudeau and the other premiers. (See Patriation of the Constitution.)

Brian Mulroney became prime minister in 1984. He was determined to amend the Constitution to make it acceptable to the government of Quebec. That province was led after 1985 by a federalist Liberal, Robert Bourassa. In 1987, Mulroney and all the premiers settled on a series of amendments in the Meech Lake Accord. However, that agreement collapsed three years later when the legislatures of Manitoba and Newfoundland failed to ratify it. (See also: Editorial: The Death of the Meech Lake Accord; Maclean’s Article: Meech Lake Ten Years After.)

Another agreement, the Charlottetown Accord of 1992, also failed. (See also Charlottetown Accord: Document.) It was defeated in a national referendum. Quebec nationalists again claimed that their province had been humiliated. This sentiment fuelled the growth of the Bloc Québécois, a new separatist party in Parliament.

Resentment over the events of 1981–82 still lingers among some Quebec nationalists. However, Quebec’s place in the Constitution is no longer at the forefront of Canadian public debate. Public opinion surveys show widespread support for the Charter of Rights and Freedoms in every province, including Quebec.

See also: Constitution Act, 1982 Document; Constitutional History;  Constitutional Law; Constitutional Monarchy; Peace, Order and Good Government; Constitution Act, 1867; Constitution Act, 1867 Document; Constitution Act, 1982; Constitution Act, 1982 Document; Editorial: The Canadian Constitution Comes Home; Editorial: Newfoundland’s Contribution to the Patriation of Canada’s Constitution.