Ever since 1931, Canada had been considered an independent country from Britain, however, the Canadian Constitution was still located in Britain. Starting in about the 1960's, prime ministers made attempts to bring the constitution back to Canada. However, the difficulty with doing this was that there existed no amending formula for the said constitution. The provinces and the federal government quabbled over this issue for decades with no solution that everyone could agree on. The idea was that once an amending formula was agreed upon, the British Parliament could pass a law sending the British North America Act back to Canada.

Enter Pierre Elliott Trudeau. In 1980, he made several attempts to work with the premiers of the provinces to agree on an amending formula, but once again, no headway was made. Quebec argued incessantly with Trudeau, wanting special treatment because they were a distinct society.

Finally, sick of the arguments, Trudeau wrote his own amending formula and went to Britain to get the law passed without the consent of the other provinces. The provinces yelled bloody murder and brought the federal government to the Supreme Court of Canada. After much debate, the court decided that while strictly, legally speaking, the federal government could repatriate the constitution unilaterally, by constitutional convention, the federal government should have the agreement of the provinces.

The 1981 Supreme Court decision left both sides declaring victory. After the decision, Trudeau decided to try one last time at a compromise, but yet again, the provinces failed to agree. Finally, one night on a kitchen table in a hotel, Jean Chretien and attorney generals from Ontario and Saskatchewan hammered out a deal in the wee hours of the morning and knocked on the doors of all the premiers until they agreed to the deal. However, Quebec was left out of this deal.

Finally, Trudeau approached the British Parliament with a constitutional accord that had the agreement of all the provinces except Quebec. In 1982, The Canada Act was passed and proclaimed by the Queen, bringing the constitution back to Canada.

What was all the fuss about?

The main point of argument throughout the whole process was, first of all, the amending formula, but more importantly, the inclusion of an Charter of Rights within the constitution. Until 1960 when John Diefenbaker passed a Bill of Rights listing the fundamental rights of a Canadian citizen, human rights had always been considered unwritten. It wasn't that Canada didn't have any human rights until that time, but that they had always existed without the need to be written down in a document. However, the problem with this bill was that it was only an ordinary act of parliament, meaning that it could be altered or abolished with each elected goverment. Trudeau wanted this Bill of Rights to be a part of the constitution so that it could not be changed with the same ease. Trudeau's "new" constitution included:

  • The BNA Act
  • An entrenched Charter of Rights
  • An amending formula
  • Control to the provinces over their natural resources
    Some argued that Canada didn't need their human rights written down, and that the amending formula made the constitution too hard to change.

    The Charter of Rights has allowed judges more control over the way they interpret human rights, and has caused many previous judgements to be struck down as opposing the Charter. To quell the controversy, a notwithstanding clause was inserted into the Charter, allowing provinces to opt out of certain sections of the Charter and pass laws that are not in accordance of certain human rights. To date, only Saskatchewan and Quebec have exercised this clause, the latter using it on a regular basis.

    The virtues and vices of the Charter and Trudeau's method of repatriating the constitution will be debated for years to come, but is nevertheless an important part of Canadian heritage and history.

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