From the backroom to the front line: making constitutional history or encounters with the constitution: patriation, Meech Lake, and Charlottetown.

• Author: Dawson, Mary
• Position: McGill Law Journal Annual Lecture Series/Conference annuelle de la revue de droit de McGill

Toward the end of the previous century, Canadians experienced an unprecedented period of constitutional activity involving changes and proposed changes to our constitution, three referendums, and a series of important court decisions. The patriation of the constitution of Canada was formally proclaimed in Canada on April 17, 1982. The new amending formula was tested in a series of constitutional negotiations. The two most prominent of the proposed amendments, the Meech Lake and Charlottetown Accords, although ultimately unsuccessful, had a very significant impact. A number of other, less extensive amendments were achieved with little controversy. In this lecture, as drafter of the proposed amendments and former legal advisor to the Government of Canada, I will look back on the drama of these events, paying particular attention to the context in which they took place, the different processes that were carried out, the events that were taking place in the backrooms, and the aftermath of some of these initiatives.

Vers la fin du siecle dernier, les Canadiens et Canadiennes ont vecu une periode d'activite constitutionnelle sans precedent, incluant des changements effectifs et proposes a notre constitution, trois referendums et une serie de decisions judiciaires importantes. Le rapatriement de la constitution du Canada a ete formellement proclame le 17 avril 1982. La nouvelle formule d'amendement a ete mise a l'epreuve dans une serie de negociations constitutionnelles. Les deux propositions d'amendement les plus proeminentes, les Accords du Lac Meech et de Charlottetown, ultimement sans succes, ont eu un impact significatif. Un certain nombre d'autres amendements, moins controverses, ont ete reussis avec peu de bruit. Dans cette conference, en tant que redactrice des amendements proposes et ancienne conseillere juridique pour le Gouvernement du Canada, je reviendrai sur ces evenements, portant particulierement attention au contexte dans lequel ils eurent lieu, aux differents processus utilises, aux evenements se deroulant dans les coulisses et aux repercussions de certaines de ces initiatives.

Introduction I. Background A. Forces for Change II. The Constitution Act, 1982 A. Moving Forward B. The Special Joint Committee C. The November Conference D. November 5: Consensus Reached E. The Afternoon Meeting F. After the Conference G. The UK Parliament H. Final Comments III. After Patriation A. The Canadian Charter of Rights and Freedoms B. The Aboriginal Peoples of Canada C. Applying the New Amending Procedure D. The French Version of the Constitution IV. The Meech Lake Accord A. An Agreement Reached B. The Agreement Unravels C. Echoes of Meech Lake V. The Charlottetown Accord VI. The Aftermath VII. Final Thoughts Introduction

I am honoured to have been invited to deliver the McGill Law Journal Annual Lecture for 2012. It is a special pleasure for me to do so, as I received my B.A. and B.C.L. from this university.

This year marks the thirtieth anniversary of the patriation of the constitution. I have therefore chosen as my topic the experiences that I have had in relation to constitutional developments in Canada. I became involved in these developments in September 1980, when I took on a leadership role in the Drafting Section of the Department of Justice in Ottawa. I remained involved as principal legal advisor and drafter until my retirement in 2005.

1. Background

   Canada was the first of the former British colonies to achieve an independent status, but because its founding statute, in 1867, did hot establish proeedures for major amendments to the constitution to be made in Canada, that task remained with the UK Parliament, (1) as it turned out, until 1982.

   It was not for want of trying that Canada was unable to devise an amending procedure for itself. Important advances were made with the Statute of Westminster, 1931. (2) This act removed the rule that UK statutes had supremacy over dominion (3) laws (section 2) and provided that no UK act would apply in the future to a dominion unless the act expressly declared that the dominion had requested and consented to the enactment (section 4). However, the power to make major amendments to out constitution was left to the UK Parliament. This failure to agree on an amending formula persisted for another half century despite many, many attempts to find a consensus at numerous federal-provincial constitutional conferences.

   My intention in this presentation is to provide an overview of the constitutional activities that I was directly involved in, and to give some insight into the forces behind the proposals, the processes that were followed, including in the backrooms, and the aftermath of some of these initiatives. I will describe in some detail the drama of the final months leading to the Constitution Act, 1982, some of the issues and events surrounding the Meech Lake Accord--the initial excitement and the disappointment of its defeat--and the broad consultation and inclusiveness of the Charlottetown Accord, which could hot overcome its own weight. I will mention, as well, some of the oft-forgotten constitutional amendments that were attempted in the intervening years, some of which succeeded and some of which did not. I see the final two decades of the last century as part of one story.

   1. Forces for Change

   Before I begin, I would like to recall briefly the years leading up to the patriation of the constitution in 1982. The themes raised during those years remain central to out understanding of ourselves as Canadians.

   The 1960s were a time of excitement and change. Canada was celebrating its centennial year in 1967, and pride in Canada was at a high point. That was the year of Expo 67 in Montreal. It was time for Canadians to take ownership of their own constitution.

   At the same time, Quebec nationalism was on the rise, and some groups of militants were beginning to emerge. The October Crisis in 1970 was a serious shock to Canadians. To most Canadians, the kidnapping of a British diplomat, the kidnapping and murder of a Quebec cabinet minister, and the invocation of the War Measures Act (4) seemed totally alien. Another major event occurred in November 1976, when the Parti Quebecois, a party committed at the time to taking Quebec out of Canada as we know it and proposing a new sovereignty-association arrangement, was voted into power under its popular leader, Premier Rene Levesque.

   Language issues had already taken on a new prominence. A Royal Commission on Bilingualism and Biculturalism had made strong recommendations in 1967 to enhance the equality of both official languages and to provide language protections. (5) Pierre Elliott Trudeau, prime minister from the end of the 1960s almost continuously until the early 1980s, himself perfectly bilingual, had a vision of a Canada in which both French and English could flourish across the whole country.

   Human rights in general became a preoccupation in the 1960s in Canada, as elsewhere. The Parliament of Canada had enacted the Canadian Bill of Rights (6) in 1960 under Prime Minister John Diefenbaker but, as an ordinary statute, it was not having as great an impact in the courts as legislators had hoped. Prime Minister Trudeau, who was very much an advocate of individual rights in the traditional liberal mould, became a strong advocate of an entrenched bill of rights, and this objective remained constant from the late 1960s through to the achievement of the constitutional package that became the Constitution Act, 1982.

   There were several lengthy periods of intense federal-provincial constitutional negotiation, involving a range of proposals, between 1967 and 1980, but all ultimately ended in failure. Several different amending formulas were explored, as well as the possibility of establishing an entrenched bill of rights.

   In 1978, the federal government gave up trying to achieve agreement and took another approach. It published a white paper entitled A Time for Action, putting forward a plan for the federal government, as a first step, to go ahead with constitutional renewal in areas of federal jurisdiction, where agreement would not be necessary with the provinces. (7) This too failed, when the Supreme Court found that the federal government's Bill C-60 had overstepped its jurisdiction when it attempted to replace the Senate with a new institution called the "House of the Federation". (8)

2. The Constitution Act, 1982

   1. Moving Forward

      There was then a brief lull in constitutional activity, followed in 1980 by the first of two referendums held in Quebee on the matter of Quebee's independence. Despite the popularity of the Quebec leader, Rene Levesque, the referendum resulted in a vote of 59.6 per cent (9) in favour of Canadian federalism and against embarking on a process that would lead to sovereignty-association. Late in the process, Prime Minister Trudeau, who had recently been re-elected after a short period out of office, weighed in with his contrasting image of a strong Canada. He undertook to press ahead with constitutional change. Over the summer of 1980, the Government of Canada embarked on yet another intense period of federal-provincial consultations in an attempt to reach an agreement. Yet again, no agreement was reached.

      Once again, the federal government proposed to act unilaterally. Apparently despairing of ever reaching an agreement with the provinces, Prime Minister Trudeau boldly proposed to go over the heads of the provincial politicians to present the people of Canada with a "people's package" that included, among several other elements, a charter of rights and freedoms and an amending formula to provide for all future constitutional amendments to be made in Canada. The package contemplated the possibility of a referendum as a deadlock-breaking mechanism if the Senate and House of Commons had approved an amendment and there was insufficient approval by the provincial bodies within a year...