Canadian Politics: The 1982 Repatriation

Pre-1982 - PQ and 1980 Referendum saw:

-1976 Rene Levesque and the “sovereignty-association” movement -secede from Canada, but economic alliance

-Referendum campaign: Trudeau, Centre Paul-Sauvre, Montreal 1980: Pierre Trudeau gave speech saying if vote no= want constitutional changes to reform the federal system to satisfy your demands within Canada

-45% YES/ 65% NO -meant people wanted more power for Quebec, but no wanting to secede

The PQ

-former journalist, elected under liberal banner, wanted more autonomy for Quebec

-Quebecois autonomy guiding principle of PQ

T/F since the 1930s, many failed attempts to patriate the constitution.. always because partners (provinces) would not agree on a new amending formula

True - -constitutional convention, actors thought Quebec had a veto right (provinces in general), not the case

Trudeau in 1980: I have a plan:

→ charter of rights + amending formula

T/F The Gang of 8 not on board with Trudeau’s plan

True - agreed to disagree for different reasons, wanted to come out with stronger power than they had before

Who was the gang of eight

QC, MB, AB, PEI, Newfoundland, BC, SK, and Nova Scotia

The Gang of 8 vs?

Ottawa + Ontario, and New Brunswick

What were some of the reasons the gang of 8 opposed the plan

Quebec had its own traditional demands: The societe distincte clause, etc..

Most provinces wanted greater legislative and fiscal autonomy (decentralization ++ or meaningful autonomy)

Some (Manitoba++) feared the impact of introducing a constitutional charter of rights on our “cherished parliamentary tradition”

Trudeau: then i’ll proceed

unilaterally(in accordance with specific founding myth

3 political myths/storylines of 1864-1967

Compact theory #1 view - Canada as a pact between 2 equal founding peoples (2 demoi) (Quebec above other provinces, lends to idea of confederalism)

Compact theory #2 -Canada as a pact between British colonies - more consistent with the idea of federalism

Imperial statute - Canada as a simple ordinary statute of the British parliament

Contrasted visions/ political myths (compact theories):

Quebec → two founding peoples (Quebec has a veto over constitutional change)

Gang of eight → contract between equal provinces (each province has a veto right)

Ottawa, Ontario, New Brunswick → imperial law… Ottawa can proceed unilaterally if necessary

Judicial review: can the federal proceed unilaterally?

Manitoba court of appeal: yes, QC: yes, Newfoundland: no, SCC: 1981 - Patriation reference: legally speaking, yes, but according to some constitutional convention, needs a substantial degree of consent to proceed

The night of the long knives?

November 1981, a last bargaining operation (4 days):

-how to break up the gang of 8

Day 1: at noon it was over.. nothing was achieved

Day 2: we need to find compromise

Day 3: Sterling Lyons off to campaign

Kitchen accord: Jean Chretien + Ontario and Sask → new compromise (notwithstanding clause)

Chretien and cie. called / met with all premiers, did not reach Rene Levesque ( at Hull, not Ottawa)

Day 4: Levesque gets informed of the deal: felt betreayed by his partners.. boycotted the next meeting

Parliamentary vs constitutional supremacy: which one of the branches of the state has the last word? Parlimentary supremacy =

in their respective spheres of jurisdiction, each order of government (parliament or legislature) is sovereign to adopt any bill

- no other institution (such as the judiciary branch) has the power to declare its laws unconstitutional (the courts can only recommend changes)

-british tradition.. no formal constitutional texts

-some basic rights are understood to be beyond the reach of the legislator.. political price to pay

-the prevailing situation before 1982

Difenbakers bill of rights (1960)

→ only applied to federal laws.. the judiciary could only point out to problems

Constitutional supremacy:

the constitution of Canada is the supreme law of Canada (1982)

consequently → if parliament of any provincial legislatures now enact a law which violates a section of the charter, a court has the power to strike this legislation down

-Usa tradition: legal activism.. judicialization of the politics

-gang of 8/ Lyon → feared this would limit too much the range of possibilities for the provincial legislatures

Judicialization of politics refers to:

the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies

Judicialization of politics

→the transfer to courts of contentious issues of an outright political nature and significance

→ non-elected judges make decisions instead of elected MPs and MLAs overrule descisions taken by these elected officals

→ democratic deficit

→ judges are not accountable to the public

Compromise reached with the “Kitchen Accord” → section 33 (1982):

Parliament of the legislature of province may expressly declare in an act of parliament or of the legislature, as the case may be, be that the Act or provision thereof shall operate notwithstanding a provision included: in section 2 or sections 7-15 of this charter

Compromise reached with the “Kitchen Accord” → section 33 (1982): its function is to prevent a person from bringing in an action..

in court claiming that a law violates fundamental freedom (section 2) legal rights (sections 7-11), or equality (section 12-15) and is therefore invalid - never used by Ottawa

partial safeguard of the spirit of

the parliamentary supremacy tradition

using the notwithstanding allows to

pre-emptively protect a new law, valid for a 5 year period, can be renewed for additional 5 year period indefinitely

as of today, the notwithstanding has been used

20+ times by QC, AB, SK, ON, Yukon - comes with a political cost

The theory of constitutional dialogue:

Describes the relationship between the legislative and judicial branches in Canadian political regime

following constitutional supremacy the courts will advise

the legislative branch to revise its laws/bills for these to comply with the Charter - the legislator will then respond accordingly

Really a dialogue? or rather a monologue to enforce compliance with the charter?

in the end, the legislator makes sure proposed bills comply with the charter before they adopt it