Showdown in Ottawa

A blow-by-blow account of the struggle to patriate the Canadian constitution

Thirty years, a full generation in historical terms, have gone by since Canada took charge of its constitution, removing it from the custody of the United Kingdom Parliament. No doubt the 30th anniversary of that milestone in Canadian history will bring forth a flood of writing on the significance of the event and the political struggle through which it occurred. None is likely to provide a more gripping or authoritative account than Ron Graham’s The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada.

Graham’s focus is on the first ministers’ meeting in November 1981, when Prime Minister Trudeau and the ten provincial premiers met for four days in Ottawa’s former railway station, converted into a government conference centre—primarily, it seemed, for constitutional jousting. It was the eleventh time Canada’s first ministers had met together over nearly six decades to debate the terms on which Canada might take charge of the Constitution. And it turned out to be indeed the last act in the pursuit of patriation.

This final meeting took place only because of a decision of the Supreme Court of Canada in September 1981. Trudeau and his government planned to ask the UK’s Parliament to end all legal control over Canada’s constitution, give legal effect to an all-Canadian amending formula and add the Charter of Rights and Freedoms to Canada’s constitution, and to do all of this on the basis of a resolution passed by both houses of the Parliament of Canada but supported by only two provinces, New Brunswick and Ontario. Three of the provinces that opposed the Trudeau government’s patriation package, Manitoba, Newfoundland and Quebec, launched challenges in their provincial courts of appeal against the constitutionality of the federal government’s unilateralism. Although two of the three appeal courts (Manitoba’s and Quebec’s) dismissed the challenge, there was a right to appeal to the Supreme Court of Canada.

When it came, the Supreme Court delivered a mixed message. Although there was no legal impediment to the federal government’s proceeding with the support of only two provinces, six justices found that there was an unwritten constitutional convention requiring that requests for constitutional changes affecting the powers of the provinces must have a substantial measure of provincial support. Trudeau decided not to brazen it out legally but to respect the court’s view. Hence, he and the ten premiers, together with their entourages of ministers and advisors, gathered on Monday, November 2, 1981, in the Ottawa conference centre for one last effort to forge a consensus on the terms of patriation.

Graham has done a superb job in recounting those four days in November 1981, when Canadians watched enthralled as their elected leaders negotiated the future of the country in full view of the television cameras. He has assiduously mined the mountain of writing—in English and French—on the patriation events. To what can be gleaned from these secondary sources he has added insights based on interviews with many of the surviving participants and drawn from restricted files at Library and Archives Canada. The result is a fine work of scholarship that is also a wonderful read for anyone interested in understanding the political forces in play during those turbulent four days.

Of course, we know how it finally played out. The Gang of Eight (all but Ontario and New Brunswick) changed into a Gang of Nine (all but Quebec) supporting a revised patriation package that only Quebec opposed, and Canada’s constitution was patriated with the Charter of Rights … despite Quebec’s opposition. But the outcome was by no means a foregone conclusion. Some claim that René Lévesque would never have agreed to any constitutional deal that would strengthen Canada. But he had agreed with seven other premiers to patriation with an amending formula first unveiled at Vancouver. This formula was based on the principle of provincial equality. Its main amending rule requiring approval of the federal parliament and seven provinces representing 50 percent of the population did not give Quebec a constitutional veto. It was Trudeau, not Lévesque, who clung to an amending formula (part of the aborted Victoria Charter a decade earlier) that gave vetoes to Quebec and Ontario as well as to provinces representing regional majorities in Atlantic Canada and the West. Was it not possible that Trudeau might yield (as he eventually did) on the Quebec veto and along with Quebec adopt the Vancouver formula?

Even if he did, Trudeau would never support patriation alone. He had to have a charter. But how strong a charter? Quebec had plenty of support from the other premiers in resisting a charter that imposed minority language rights, especially in relation to schools, on the provinces. Was it not possible that Trudeau might be brought around to somehow softening or postponing this part of the Charter?

There were more issues at play in the negotiations than the amending formula and the Charter of Rights. Just three weeks after launching his threat to proceed unilaterally with his “people’s package” of patriation amendments, Trudeau had opened up “an almost reckless second front” by launching the National Energy Program curtailing Alberta’s and Saskatchewan’s opportunity of cashing in on rising oil and gas prices. Federal NDP leader Ed Broadbent, responding to the concerns of Saskatchewan’s NDP government, persuaded Trudeau to add to his package an amendment giving provinces power to tax their non-renewable resources and, subject to an overriding federal power, regulate their export to other provinces. For the have-not provinces of Atlantic Canada, recognition of the principle of fiscal equalization would be part of the package. And, on and off and on again, there would be a section recognizing the rights of Canada’s aboriginal peoples. Nevertheless, the amending formula—Victoria versus Vancouver—and the Charter—a strong charter versus an emasculated charter—were the key issues. And Pierre Trudeau and René Lévesque were the principal players.

Trudeau and Lévesque were both coming off major political victories. In 1980 Trudeau had come back from the political dead, returning to power with a majority in the House of Commons that included 74 of Quebec’s 75 seats, and leading the no side to victory in the 1980 Quebec referendum. Lévesque had rebounded from his referendum defeat to win a majority in the April 1981 Quebec election. As Graham observes, these two popular Quebec leaders had much in common. Besides sharing a first language, a Catholic education and a familial sense of cultural meanings, they shared “a presumption that politics was about deadly serious issues, the course of history, and the fate of nations, not merely about budget priorities and legislative timetables.” Their political philosophies contained a dash of Rousseau, much more than did those of the anglophone first ministers: “both placed enormous trust in the will of the people.” Indeed, it was their shared inclination to populist democracy that would break up the Gang of Eight.

While Graham highlights the “Pierre and René Show,” he does not neglect the supporting cast. We see how Alberta’s Peter Lougheed, the intellectual and political leader of the federalist resistance to Trudeau’s centralism, was Lévesque’s sole line of communication to the rest of the Gang of Eight. We watch Saskatchewan’s Allan Blakeney apply his constitutional knowledge and fine legal mind to finding a way out of the impasse, and in the process destabilize the gang. It was Blakeney’s people, in particular his ministers Roy Romanow and Howard Leeson, who took the lead behind the scenes in pushing other delegations to find an acceptable compromise. And we come to appreciate the pivotal role played by Bill Davis in moving Ontario from Trudeau’s side to the gang’s. It was Davis’s phone call to Trudeau on Wednesday evening, the “night of the long knives,” pulling the prime minister out of a discussion with his cabinet, that moved him toward accepting a compromise that had been cooked up in the conference centre kitchen by Jean Chrétien, Roy Romanow and Davis’s attorney general, Roy McMurtry.

What loosened up the Gang of Eight and cost Trudeau Ontario’s support was Trudeau’s and Lévesque’s apparent willingness to resolve the deadlock by referendum. On Wednesday at the end of an exasperating morning, when Trudeau proposed a referendum tiebreaker and Lévesque replied “that is not a non-starter for me,” the cat was among the pigeons. A referendum was a non-starter for all of the other first ministers, including Davis. Some think that this was all planned by Trudeau. Graham prefers McMurtry’s view that the result of these meetings depended “as much on chance remarks and accidents of timing as any grand design.”

The Ottawa River, much more than any long knives, shaped the outcome of the backroom negotiations that took place on the last night of the conference. Four provinces, Manitoba, Nova Scotia, Prince Edward Island and Saskatchewan, were headquartered at the Château Laurier. British Colombia’s Bill Bennett, as chair of the annual premiers’ conference, had a committee room at the Château in which provincial officials worked through the evening to fashion a compromise agreement. New Brunswick, Newfoundland and Ontario were a short limo ride away in the Four Seasons Hotel, with two of their premiers, Peckford and Davis, keeping in close touch with the officials at the Château. Alberta, “as though brooding in a tent on the edge of the battlefield,” was quartered in a Skyline Hotel penthouse further away across town. Trudeau was home at 24 Sussex reviewing the state of play with his cabinet. But Lévesque and the Quebec delegation were across the river (in more ways than one) lodged in the Auberge de la Chaudière in Hull, and there they stayed all night. No Quebec official was invited to participate in the negotiations going on at the Château Laurier, and no phone calls were made to keep Lévesque informed of what the other members of the Gang of Eight were considering. Graham thinks that Quebec’s participation in those Wednesday night negotiations probably would not have changed the outcome. But for Bill Davis, not a member of the gang but a very honourable person, “the saddest part is that Lévesque was never told.”

At one o’clock Thursday morning, as Lévesque turned off his light and went to sleep in Hull, while Trudeau and Lougheed slept in Ottawa and New Brunswick’s Richard Hatfield whiled the night away listening to Sleepy Waters in the Château’s Cock and Lion pub, champagne corks popped in the B.C. committee room in the Château Laurier as officials celebrated reaching a deal that at least seven provinces and maybe Trudeau could accept. This was the deal that was presented to the Gang of Eight when they assembled Thursday morning for their regular 8 a.m. meeting. By that time Lougheed was on board and had secured by telephone the support of Manitoba’s Sterling Lyon, who was home fighting a provincial election. Although it was presented as only a tentative proposal, it outraged Lévesque: “It was the procedure much more than the content that was intolerable.” When the full conference assembled for its final session at 10 a.m., Newfoundland’s Peckford, proud as a peacock, read the proposed agreement. The suspense built as Trudeau listened and, with a deep frown on his face, read carefully. Finally, he looked up and said “Not bad, nice work. It makes a lot of sense.”

So what did the crucial compromise consist of? Trudeau had to swallow—and swallow hard—attaching a notwithstanding clause to the Charter of Rights and Freedoms that would permit federal and provincial legislatures to override fundamental democratic, legal and equality rights. And he moved, much more easily, from the Victoria to the Vancouver amending formula (albeit with no fiscal compensation for opting-out provinces). At B.C.’s insistence, recognition of aboriginal rights was dropped. After the deal was unveiled publicly, through changes agreed to by telephone, aboriginal rights were restored but qualified by the word “existing” (no one knew what that meant, but it satisfied B.C.), and the guarantee of gender equality was given some protection from the notwithstanding clause. Trudeau, in a vain effort to placate Quebec, also agreed to fiscal compensation for provinces that opted out of constitutional amendments relating to education or other cultural matters, and to leaving it to Quebec’s National Assembly to decide when to extend minority language school rights to the children of anglophone citizens moving to Quebec.

With these final touch-ups, the deal forged in the Château Laurier on the night of November 4, 1981, became the basis of the Constitution Act, 1982, which the UK Parliament passed as part of the Canada Act severing all of the UK’s legal powers in relation to Canada and which Queen Elizabeth brought into force as an addition to the Constitution of Canada, on a memorable rainy day in Ottawa in April 1982.

So the deal that brought our constitution home was done. But was it done wisely and fairly?

Surely no one can be proud of the process. For a multinational polity like Canada to fail to invite representatives of the aboriginal peoples and exclude Quebec from the final negotiation was totally unacceptable. Not only that, but there was no willingness to adopt the procedure agreed to ten years earlier at Victoria and seek the approval of the elected legislatures for the patriation package. Never again would Quebec, the aboriginal peoples or the people of Canada permit their constitutional fate to be determined by ten first ministers behind closed doors. Moreover, in making fundamental changes in Canada’s constitution without Quebec, Trudeau and the anglo premiers broke the bargain of Confederation and in doing so risked the unity of the country. The magnitude of that risk became evident on October 30, 1995, as the results of the Quebec referendum were tallied and in the end gave the no side a win—but by less than a decimal point. A win for the yes side that night would have resulted in a constitutional negotiation that would make the patriation’s last round seem like a tea party.

As for the substance, Graham’s final chapter summarizes the numerous ways in which patriation changed Canada’s constitutional system. Certainly a number of these were significant improvements. In terms of Canadians’ collective self-respect it was important to sever the “last significant colonial link.” The all-Canadian amendment formula makes our formal written constitution difficult to change—but flexibility in this part of our constitutional system is not something to be wished for. The Charter of Rights and Freedoms, although vastly overrated in a substantive sense, apparently makes Canadians feel better about their country, and I suppose that is a good thing. The great irony is that patriation’s biggest beneficiaries were Canada’s aboriginal peoples, who were entirely excluded from the process. Constitutional recognition of aboriginal and treaty rights, the priority given to the rights and freedoms of aboriginal peoples recognized in the 1763 Royal Proclamation and the requirement of aboriginal peoples’ participation in future conferences affecting their rights have turned out to be important gains for aboriginal peoples in advancing their interests. This must rank as one of history’s most remarkable examples of unintended consequences.