The Politics of Constitutional Renewal in Canada

  • Alan C. Cairns


The proclamation of the Canada Act in April 1982 was the culmination of two decades of constitutional controversy. In the 1960s the basic challenge to the historic constitutional system deriving from Confederation in 1867 came from dynamic nationalist elites in the province of Quebec, who were frustrated by the constraints of the limited jurisdictional autonomy enjoyed by the provinces in the Canadian federal system. By the mid-1970s, when Quebec nationalism had installed in office a provincial government committed to independence, Quebec had been joined by other provincial governments, especially in western Canada, which were equally frustrated by the limitations the existing federal system imposed on their ambitions.


Federal Government Provincial Government Federal System Opposition Parti Liberal Government 
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  1. 1.
    See Denis Smith, Bleeding HeartsBleeding Country: Canada and The Quebec Crisis (Edmonton, 1971) for a discussion.Google Scholar
  2. 2.
    See Richard Simeon, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada (Toronto, 1971) pp. 115–22 for the details.Google Scholar
  3. 3.
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  4. 5.
    See Allan Smith, ‘Quiet Revolution in the West’, Canadian Forum, LVIII, no. 681, June–July 1978, for an incisive discussion of the transformation of western Canada.Google Scholar
  5. 6.
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  6. 7.
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  7. 8.
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  8. 11.
    With the exception of Canadian Indians, who mounted extensive lobbying efforts in the United Kingdom, non-governmental participation in Britain was mainly restricted to massive letter-writing campaigns opposing patriation. Edward McWhinney, Canada and the Constitution, 1979–1982 (Toronto, 1981) pp. 72–3.Google Scholar
  9. 12.
    See the assessment of Jeffrey Simpson, ‘Divided Canada puts UK in a hot spot’, Toronto Globe and Mail, 15 April, 1982. See also Ronald J. Zukowsky, Struggle over the Constitution: From the Quebec Referendum to the Supreme Court, Intergovernmental Relations in Canada, The Year in Review, 1980, vol II (Kingston, 1981) p. 5.Google Scholar
  10. 15.
    Other indications of that conservatism had already been vividly manifested in the defeat of several concerted efforts to get significant constitutional change in the previous two decades: (i) The Fulton-Favreau amending formula of the mid-1960s, a formula almost excessively respectful of provincial prerogatives, was dropped and faded away because of the withdrawal of support by the Lesage government of Quebec. (ii) The Victoria Charter package of 1971, which included an amendment formula, a limited Charter of Rights and Supreme Court reform was not proceeded with when the Quebec government made its support conditional on constitutional changes in the social policy area which were not forthcoming. (iii) The federal government effort in Bill C.60 to institute a measure of change in areas that Ottawa insisted were within its own amending jurisdiction failed to get broad support from Parliament. The constitutionality of parts of the Bill was challenged by several provinces and a fading Trudeau government nearing the end of its term could not keep it alive in the face of so much opposition. A belated Supreme Court ruling in the closing weeks of the subsequent Conservative government found that the proposed changes to the Senate were ultra vires the federal amending power under 91 (1) of the BNA Act. (iv) The federal government attempt in Bill C.9, The Canada Referendum Bill, was a portent of later unilateralist attempts by Ottawa, and also of its recurrent strategy to bring in the people to bypass provincial governments in constitutional change. The Bill would have allowed Ottawa to consult ‘the entire population … on future proposals for constitutional change’, including reforms of any of the ‘customs, conventions and enactments that comprise the Constitution of Canada’. The Conservative opposition fought the Bill in Parliament, and it died with the 1979 election. Douglas Brown, lntergovernmental Relations in Canada: The Yearin Review, 1979 (Kingston, 1980) p. 32.Google Scholar
  11. 16.
    Peter H. Russell, ‘The Effect of a Charter of Rights on the Policy-making Role of Canadian Courts’, Canadian Public Administration, vol. 25, no. 1, Spring 1982, p. 26.Google Scholar
  12. 17.
    The poll is discussed in Sheilagh M. Dunn, The Year in Review 1981: Intergovernmental Relations in Canada (Kingston, 1981) pp. 5–7. See the Toronto Globe and Mail, 22 August, 1981, for the negative reaction of pollsters and academics.Google Scholar
  13. 19.
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  14. 20.
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  15. 21.
    Bob Rae, ‘Building Traditions’, Canadian Forum, LIX, no. 692, September 1979, p. 11.Google Scholar
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    See Dunn, The Year in Review 1981: Intergovernmental Relations in Canada, p. 19, and William Johnson, ‘Quebec Liberals adrift in a sea of indecision’, Toronto Globe and Mail, 1 October, 1981, for the tensions and divisions in the Quebec provincial legislative party caucus over their response to a PQ motion condemning federal government unilateralism. Nine Liberals, mainly from anglophone ridings, broke with the party leadership and voted against the motion.Google Scholar
  17. 35.
    ‘PM accepts Ryan’s plan for Quebec agreement’, Vancouver Sun, 16 November, 1981; and Charlotte Montgomery, ‘PQ Reign can be Out-waited: Trudeau’, Toronto Globe and Mail, 16 November, 1981. Trudeau was obviously trying to prevent a common PQ-Liberal front against the agreement, and he knew that a very high percentage of provincial Liberal voters felt that Levesque should have signed (82 per cent according to one survey, Vancouver Sun, 14 November, 1981) thus making it difficult for Ryan to side with Lévesque’s seeming intransigence. Trudeau was successful to the extent that on a straight party vote the provincial Liberals voted against a PQ motion laying down Quebec’s minimum demands, which passed 70–38. Vancouver Sun, 1 December, 1981.Google Scholar
  18. 41.
    The three following paragraphs are taken, with minor changes, from the author’s ‘Constitution-Making, Government Self-Interest, and the Problem of Legitimacy in Canada’, to be published in a book tentatively titled Political Support in Canada: The Crisis Years, edited by Allan Kornberg and Harold Clarke. For additional analysis see McWhinney, Canada and the Constitution, chap. 11; Dunn, The Year in Review 1981: Intergovernmental Relations in Canada, pp. 30–4; and Robert Sheppard, ‘Lobby groups taste blood, and Ottawa quaking’, Toronto Globe and Mail, 26 November, 1981.Google Scholar
  19. 42.
    For the decisive impact of the Joint Committee process on the Charter see the testimony of the Minister of Justice, Jean Chrétien, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, no. 36, 12 January, 1981, and Robert Sheppard, ‘PM’s Proposed Charter of Rights Could Have Far-reaching Effects’, Toronto Globe and Mail, 14 February, 1981.Google Scholar
  20. 44.
    See Donald Smiley, The Canadian Charter of Rights and Freedoms, 1981, Discussion Paper Series, Ontario Economic Council (Toronto, 1981) for a sophisticated discussion.Google Scholar
  21. 46.
    ‘The effect of the legislative override in diminishing judicial power should not be over-estimated. Legislators who contemplate recourse to the notwithstanding clause will face some powerful political disincentives … Access to the crowded agenda of modern legislatures is never easy and may be especially difficult when influential groups have a vested interest in a position adopted by the judiciary. In proposing a legislative override, government will be committing itself to a policy position which is almost bound to be labelled by the media as ‘subverting civil liberties’. This is bad politics, even for a government with a clear legislative majority’. Peter H. Russell, ‘The Effect of a Charter of Rights on the Policy-making Role of Canadian Courts’, Canadian Public Administration, vol. 25, no. 1, Spring 1982, p. 19.Google Scholar
  22. 49.
    See the critical comments of Max Yalden, Commissioner of Official Languages, Toronto Globe and Mail, 17 March, 1982.Google Scholar
  23. 50.
    See Richard J. Joy, Canada’s Official Language Minorities, (Montreal, 1978) and Rejean Laćhapelle and Jacques Henripin, The Demolinguistic Situation in Canada: Past Trends and Future Prospects (Montreal, 1982).Google Scholar
  24. 55.
    Zukowsky, Struggle over the Constitution: From the Quebec Referendum to the Supreme Court: Intergovernmental Relations in Canada: The Year in Review 1980, vol. II (Kingston, 1981) p. 5.Google Scholar
  25. 56.
    Richard Gwyn, ‘The Big Constitutional Dice Roll’, Vancouver Sun, 22 April, 1981.Google Scholar
  26. 57.
    See John Gray, ‘A Magnificent Obsession’, Toronto Globe and Mail, 7 November, 1981.Google Scholar
  27. 58.
    This chronology was constructed with the assistance of chronologies in Toronto Globe and Mail, 18 April, 1981; Vancouver Province, 26 April, 1981; ‘The Magazine’, Vancouver Province, 18 April, 1981; David Milne, The New Canadian Constitution (Toronto, 1982) pp. 9–11; R. D. Oiling and M. W. Westmacott, The Confederation Debate: The Constitution in Crisis (Toronto, 1980) pp. xiii–xviii.Google Scholar

Copyright information

© Keith G. Banting and Richard Simeon 1985

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  • Alan C. Cairns

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