THE CONSTITUTION
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• British North America Act, 1867
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• British North America Act, 1867
– no amendment formula
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• British North America Act, 1867
– no amendment formula
– U.S. Constitution
• (2/3 of each house of
Congress and 3/4 of states)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Why no amendment formula in B.N.A. Act?
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Why no amendment formula in B.N.A. Act?
– Not possible in 1867
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Why no amendment formula in B.N.A. Act?
– Not possible in 1867
– not needed
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Why no amendment formula in B.N.A. Act?
– Not possible in 1867
– not needed
• But increasing desire for sovereignty in the
20th century
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Increasing desire for sovereignty in the 20th
century
– King-Byng affair, 1926
– Statute of Westminster, 1931
Viscount Byng of Vimy
Governor General, 1921-26
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Patriation efforts began in the 1920s
William Lyon Mackenzie King
Prime Minister, 1921-26, 1926-30, 1935-48
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
John Diefenbaker
Prime Minister, 1957-63
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1961: The Fulton Formula
Unanimous for key provisions;
fed. + 2/3 of provs. (50% of pop.)
for other amendments
Davie Fulton
Minister of Justice, 1957-63
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1961: The Fulton Formula
Unanimous for key provisions;
fed. + 2/3 of provs. (50% of pop.)
for other amendments
• Rejected by Quebec
Jean Lesage
Premier of Quebec, 1960-66
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Lester B. Pearson
Prime Minister, 1963-68
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1964:
Fulton-Favreau Formula
(Guy Favreau, Minister of Justice, 1963-65)
– minor changes to the Fulton Formula
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1964:
Fulton-Favreau Formula
(Guy Favreau, Minister of Justice, 1963-65)
– minor changes to the Fulton Formula
• Rejected by Quebec
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Pierre Trudeau
Prime Minister, 1968-79, 1980-84
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
– no unanimous consent required
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
– no unanimous consent required
• general amending formula:
– fed. + majority of provinces
• including: any province with 25% of national pop.
2 from Atlantic Canada
2 from western Canada (with 50% of pop.)
• 90 day limit to Senate delay
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
– Charter of Rights
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
Robert Bourassa
Premier of Quebec
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• 1971: The Victoria Charter
• Rejected by Quebec
Robert Bourassa
Premier of Quebec
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Rene Levesque
elected Premier of Quebec, 1976
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Referendum, May 20, 1980
VS.
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Referendum, May 20, 1980
VS.
Results:
60% “Non”
40% “Oui”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Referendum, May 20, 1980
VS.
Results:
60% “Non”
40% “Oui”
Among Francophones:
50% “Non”
50% “Oui”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Sept. 1980: First Ministers’ Conference
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Sept. 1980: First Ministers’ Conference
• no agreement
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Oct. 1980: Federal resolution
– patriation (amending formula)
– charter of rights
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Oct. 1980: Federal resolution
– patriation (amending formula)
– charter of rights
• If no provincial agreement - Federal govt. to
proceed unilaterally
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Oct. 1980: Federal resolution
– patriation (amending formula)
– charter of rights
• If no provincial agreement - Federal govt. to
proceed unilaterally
• most provinces opposed
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Unilateral federal request to British Parliament
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Unilateral federal request to British Parliament
• reference question to Supreme Court of Canada
“Does the federal Parliament have
the constitutional authority to proceed
without provincial consent?”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Unilateral federal request to British Parliament
• reference question to Supreme Court of Canada
“Does the federal Parliament have
the constitutional authority to proceed
without provincial consent?”
Ottawa, N.B., Ontario:
Other 8 provinces:
“YES”
“NO”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Sept. 28, 1981 - Supreme Court Decision
Bora Laskin
Chief Justice
Supreme Court of Canada
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Sept. 28, 1981 - Supreme Court Decision
constitutional convention
requires provincial consent
Bora Laskin
Chief Justice
Supreme Court of Canada
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Sept. 28, 1981 - Supreme Court Decision
constitutional convention
requires provincial consent
but nothing in law to prevent
Parliament from proceeding
without provincial consent
Bora Laskin
Chief Justice
Supreme Court of Canada
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Nov. 1981 - One More Try
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Nov. 1981 - One More Try
• “Kitchen Accord”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Nov. 1981 - One More Try
• “Kitchen Accord”
– Roy McMurtry - Ontario Attorney-General
– Roy Romanow - Saskatchewan Att.-General
– Jean Chretien - Minister of Justice
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Nov. 1981 - One More Try
• “Kitchen Accord”
– Roy McMurtry - Ontario Attorney-General
– Roy Romanow - Saskatchewan Att.-General
– Jean Chretien - Minister of Justice
• Produced agreement
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Nov. 1981 - One More Try
• “Kitchen Accord”
– Roy McMurtry - Ontario Attorney-General
– Roy Romanow - Saskatchewan Att.-General
– Jean Chretien - Minister of Justice
• Produced agreement (except Quebec)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Amendment formula:
– Parliament + 2/3 of provinces (with total pop. Of
50% of national)
– certain key provisions require unanimous consent
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Amendment formula:
– Parliament + 2/3 of provinces (with total pop. Of
50% of national)
– certain key provisions require unanimous consent
• Charter of Rights and Liberties
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Amendment formula:
– Parliament + 2/3 of provinces (with total pop. Of
50% of national)
– certain key provisions require unanimous consent
• Charter of Rights and Liberties
• New Constitution signed April 17, 1982
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charter of Rights and Liberties
– judicial review
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charter of Rights and Liberties
– judicial review
• Regina v. Big M Drug Mart (SCC, 1985)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charter of Rights and Liberties
– judicial review
• Regina v. Big M Drug Mart (SCC, 1985)
• Robertson and Rosetanni v. The Queen (1963)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charter of Rights and Liberties
– judicial review
• Regina v. Big M Drug Mart (SCC, 1985)
• Robertson and Rosetanni v. The Queen (1963)
• R. v. Edwards Books and Art (1986)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Abortion
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Abortion
• R. v. Morgentaler (1988)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Abortion
• R. v. Morgentaler (1988)
– S. 252 Criminal Code of Canada
contrary to S.7 of the Charter
Justice
Bertha Wilson
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Abortion
• Borowski v. Canada (1989)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Abortion
• Borowski v. Canada (1989)
• Tremblay v. Daigle (1989)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
•
•
•
•
Continued efforts at general reform:
Meech Lake, 1987-90
Charlottetown Accord, 1992
Referendum Revisited, 1995
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Meech Lake, 1987-90
• general amending formula - s.38
– “7-50 rule”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Meech Lake, 1987-90
• general amending formula - s.38
– “7-50 rule”
• ss. 40-45 use different formula
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Meech Lake, 1987-90
• general amending formula - s.38
– “7-50 rule”
• ss. 40-45 use different formula
• s. 41 - unanimous consent
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
1984
RETIRED
ELECTED
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
RETIRED JUNE, 1985
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
New Premier of Québec
Pierre Marc Johnson
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
RE-ELECTED DECEMBER, 1985
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
FIVE DEMANDS:
Recognition of Quebec’s “Distinct Nature”
Limitation of the federal spending power
Greater control over immigration for Quebec
A veto for Quebec - or ability to opt out
Participation in appointment of SCC justices
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
MEECH LAKE MEETING, APRIL 1987
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
MEECH LAKE MEETING, APRIL 1987
- DISTINCT SOCIETY for Quebec
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
MEECH LAKE MEETING, APRIL 1987
- DISTINCT SOCIETY for Quebec
- Provincial input to Senate appointments
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
MEECH LAKE MEETING, APRIL 1987
- DISTINCT SOCIETY for Quebec
- Provincial input to Senate appointments
- Provincial input on immigration policy
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
MEECH LAKE MEETING, APRIL 1987
- DISTINCT SOCIETY for Quebec
- Provincial input to Senate appointments
- Provincial input on immigration policy
- Provincial input on Supreme Court appointments
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Full Text of Meech Lake Accord:
http://www.solon.org/Constitutions/Canada/
English/Proposals/MeechLake.html
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
• By June, 1990: 7 provinces and Ottawa had
passed resolutions in favour of accord
– Manitoba and New Brunswick not yet
– Newfoundland passed and then revoked
resolution
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
ONE LAST “ROLL OF THE DICE”
June 3 - 10, 1990
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Clyde Wells
Newfoundland
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Clyde Wells
Newfoundland
Joe Ghiz
Robert Bourassa David Peterson
Prince Edward
Québec
Ontario
Island
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Don Getty
Alberta
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
David Peterson
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
David Peterson
Ontario willing to give up 6 Senate seats
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
• Saturday June 9: Agreement
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
• Saturday June 9: Agreement
• accord to be submitted to legislatures of
Newfoundland, Manitoba and New
Brunswick by June 23
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
The decision will be left to the
Legislature of Newfoundland
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Gary Filmon
Premier of Manitoba
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
• Manitoba
– Premier Gary Filmon (P.C.)
– Sharon Carstairs (Liberal)
– Gary Doer (N.D.P.)
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Elijah Harper
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Senator
Lowell Muray
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Senator
Lowell Muray
Elijah Harper
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
We are not prepared to be
manipulated any longer!
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
Meech Lake is dead
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
We need time to heal the wounds.
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
Meech Lake, 1987-90
“Quebec will no longer negotiate with
the other provinces.”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• September, 1991 - another try
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• September, 1991 - another try
• federal proposal:
– “Canada Clause”
• “distinct society”
• native self-govt.
– “EEE Senate”
– “Preparing For a More Prosperous Future”
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charlottetown Accord, August 1992
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Charlottetown Accord, August 1992
• national referendum, October 1992
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Referendum Results
NO
YES
54.2%
44.8%
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Referendum Results
NO
National
Quebec:
54.2%
55.4%
YES
44.8%
42.4%
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Referendum Results
NO
National
Quebec:
Manitoba:
Sask.:
Alberta:
B.C.:
54.2%
55.4%
61.7%
55.1%
60.2%
67.8%
YES
44.8%
42.4%
37.9%
45.5%
39.6%
31.9%
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Referendum Results
NO
National
Quebec:
Manitoba:
Sask.:
Alberta:
B.C.:
Ontario:
54.2%
55.4%
61.7%
55.1%
60.2%
67.8%
49.8%
YES
44.8%
42.4%
37.9%
45.5%
39.6%
31.9%
49.6%
CONSTITUTIONAL AMENDMENT,
1982 AND BEYOND
• Quebec Referendum Again, Oct. 30, 1995
– “Non” again - but by a narrow margin