Patriation
[10][11] The term was first used in 1966 by Prime Minister Lester B. Pearson in response to a question in Parliament: "We intend to do everything we can to have the constitution of Canada repatriated, or patriated.
In the 1960s, efforts by the governments of Prime Ministers John Diefenbaker and Lester Pearson, including the Confederation of Tomorrow conference in Canada's centennial year,[n 1][17] culminated in the Fulton–Favreau formula, but without Quebec's endorsement, the patriation attempt failed.
At the 1978–1979 conference, Trudeau prepared for the first time to provide some federal concessions with regard to the division of powers, including family law, fisheries, and resources.
[19] In that campaign, the Liberals ran on constitutional change, including a speech at Maple Leaf Gardens in which Trudeau promised unilateral action if the premiers did not agree to patriation.
As the referendum did result in a majority rejecting separation, Trudeau approached his British counterpart, Margaret Thatcher, to inform her the Canadian government wanted to patriate the constitution.
Trudeau, when presented with the document, refused to accept it and reiterated his threat that he would seek the House of Commons' approval to proceed with a unilateral amendment.
[23] This led Thatcher to take a less certain view of how things might proceed through the British legislature, sensing the provincial opposition would make the legislation controversial in Parliament.
[25] Taking the proposal to Cabinet, some ministers suggested using the manoeuvre to increase federal power over the economy, but Trudeau demurred, replying "we shouldn't upset the balance".
[26] The Prime Minister's proposal in the House of Commons, which would be tabled as the Canada Bill, invited Aboriginal, feminist, and other groups to Ottawa for their input on the charter of rights in legislative committees.
However, there was disagreement over the charter, which the premiers of six provinces (Lyon, René Lévesque of Quebec, Bill Bennett of British Columbia, Angus MacLean of Prince Edward Island, Peter Lougheed of Alberta, and Brian Peckford of Newfoundland) opposed as encroachments on their power; the press dubbed this the Gang of Six.
At the insistence of British Columbia, the premiers who opposed unilateral patriation drafted an alternative proposal to showcase the disagreement between the sides and to counter the federal government's charges of obstructionism if the document were to proceed to Westminster.
Trudeau rejected the proposed document out of hand and again threatened to take the case for patriation straight to the British Parliament "[without] bothering to ask one premier."
[28] Further, officials in the United Kingdom indicated that the British Parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed.
[29] The British Commons Foreign Affairs Committee drafted a report in January 1981 stating it would be wrong for the Parliament of the United Kingdom to enact the proposals regardless of the provincial opposition.
On September 28, 1981, the court ruled (on live television, for the first time) that the federal government had the right, by letter of the law, to proceed with the unilateral patriation of the constitution (the decision was seven to two in favour).
[42] In return, Trudeau launched a new federal initiative to the premiers: patriate the constitution as it was, but continue debates for two years and, if deadlock resulted, hold a national referendum on the amending formula and charter.
"[43] The other seven opposition premiers were startled: Campaigning against the protection of rights was generally seen as political suicide[44] and a national referendum could be seen as "conventionalizing" the charter without the need for provincial approval.
[46] Chrétien, who had been deeply involved in supporting the "no" side of the Quebec referendum and abhorred the possibility of another one, recommended the compromise to Trudeau,[46] but the Prime Minister felt, given the previous chaos, it would still be impossible to obtain the agreement of his provincial counterparts and demurred.
In exchange for agreeing to the inclusion of the notwithstanding clause, Trudeau declined to remove the federal powers of disallowance and reservation from the draft Constitution.
Lévesque refused to give his support to the deal and left the meeting; the government of Quebec subsequently announced on November 25, 1981, that it would veto the decision.
The proposal agreed upon that night was essentially the same as the Newfoundland delegation's, except for minor alterations to wording and the addition of a new section, and the final draft was to go to all the provinces for approval the following morning.
[55] Peckford's assertions have, in turn, been challenged by Howard Leeson, who was then the Saskatchewan Deputy Minister for Intergovernmental Affairs and present during all of the negotiations that night.
[56] In his opinion, the presence in the National Archives of Canada of the Kitchen Accord leaves no doubt about its existence and it was one of several crucial linkages in the patriation negotiations.
Joint resolutions of the Canadian House of Commons and the Senate requested that the Queen cause to be introduced in the British Parliament the necessary legislation to patriate the constitution.
[n 5][68] Quebec sovereigntists have, since 1982, demanded that the Queen or another member of the Canadian Royal Family apologize for the enactment of the Constitution Act, 1982, calling the event a part of a "cultural genocide of francophones in North America over the last 400 years".
[69] In 2002, Premier of Quebec Bernard Landry directed the executive council and lieutenant governor not to recognise Elizabeth's golden jubilee in protest of the Queen having signed the Constitution Act, 1982.
