Throughout April, Queen’s Law is featuring a series of essays to commemorate the 40th anniversary of the Canadian Charter of Rights and Freedoms. In this edition, Mark Walters, Queen’s Law Dean and leading constitutional theorist, recounts this pivotal moment in Canadian history, the significance as well as enduring challenges of patriation on Canada’s legislative, judicial, and treaty conventions, and how the journey towards self-determination, sovereignty, representation, and nationhood is still very much alive today. 

In April of 1982, I was a 17-year-old high school student in Toronto. I don’t remember being aware of the event that took place on Parliament Hill on April 17. If I had watched the CBC coverage of the event on television, I would have seen thousands of people gathered on the lawn in front of the Peace Tower to watch Queen Elizabeth II sign a document. I would have learned that, as Peter Mansbridge reported, “The moment the Queen puts her signature on this document, it becomes law.” I would have seen the Queen sit at a small desk in a gentle rain, looked on by the Prime Minister, Pierre Trudeau, and the Attorney General, Jean Chrétien, who were dressed in morning suits for the occasion, and I would have seen her write “Elizabeth R” on the document. Then I would have heard Mansbridge proclaim: “The Constitution is now home!”

Had I continued to watch the television coverage of this event, I would then have seen Trudeau sign the document and hand the pen to Chrétien. It would not have been obvious to me that Trudeau had broken the tip of the pen when signing. I might have noticed the Queen laugh at this point, which she did, Chrétien would later reveal, in response to his uttering under his breath “merde!”.

However, my recollection is that on this day 40 years ago I was occupied by other important business, namely, running in a high school track meet. A short four years later, I started law school and I started to learn about the significance of April 17, 1982. Indeed, I have continued to learn about the significance of this day in the years that have followed. Yes, this was the day that the Canadian Charter of Rights and Freedoms came into force. But the Charter was just one aspect of a series of constitutional changes that were part of the so-called patriation of the Canadian constitution. The patriation of the constitution was, in turn, part of a larger constitutional story about identities and values, a story punctuated by the events of April 17, 1982, but one that began before and has continued since. 

This constitutional story is full of promise and hope, yet it is also one of paradox and regret. Moments of constitution-making, when the people exercise their supreme constituent power, should be moments of celebration. Yet invariably some people end up speaking for other people, one nation for other nations, and the ascendance of one voice may mean the silencing of other voices. If the making of ordinary law involves violence that kills alternative legal possibilities, as Robert Cover once provocatively stated, then the making of supreme laws may be seen to kill alternative visions about basic normative assumptions and aspirations. The birth of one constitution will be the death of countless other possible constitutions. 

Don’t get me wrong. I think April 17 is a day to celebrate. But it is also a day to reflect upon how the true value of constitutionalism is not the work of a day but rather is the work of every day – the work of acting out our commitments to each other and interpreting them in ways that bring our shared values, including our shared respect for our differences, into ever-sharper relief.

The patriation package of constitutional reforms was deeply controversial. It led to the famous opinion of the Supreme Court of Canada in the 1981 Patriation Reference – a case in which my constitutional law teacher and former Queen’s Dean of Law, John Whyte, appeared as counsel. In this opinion, a majority of the Court held that substantial but not unanimous provincial agreement for the proposed reforms was necessary before they were sent over to Britain for formal enactment. This ruling prompted yet another round of frenetic negotiations between federal and provincial officials culminating in a final text, based on the legendary “Kitchen Accord” reached during the “Night of the Long Knives”, that the sovereigntist government in Quebec rejected. Many Indigenous peoples were also opposed.

A new Constitution Act, 1982 would supplement the old British North America Act, 1867 (to be renamed Constitution Act, 1867). The Act would include a new constitutional amendment procedure that in Quebec’s view failed to respect its status as the co-founding nation of Canada; it would also include a Canadian Charter of Rights and Freedoms that might undermine Quebec’s distinct identity. It would include provisions on “aboriginal and treaty rights” that failed to recognize expressly Indigenous rights of self-determination and which, after a last-minute change, were qualified by the insertion of the word “existing”. Concerned that the severing of legal ties between Canada and Britain would undermine Indigenous treaty relations with the Crown, several Indigenous groups brought an unsuccessful action in the English courts to stop patriation. The English judges were clear: Canada had been a sovereign state since the early twentieth century and its head of state, the “Queen of Canada”, was already legally separate from the “Queen of the United Kingdom”. The reforms of 1982 were substantively enormous, but the patriation part was perhaps more of a technical tidying-up measure.

The reforms of 1982 prompted intense debate between competing visions of Canada and competing aspirations of nations that challenged conceptions of Canadian nationalism that would last for years. Indeed, the debates continue today. Proposed constitutional amendments designed to address Quebec and Indigenous nationalism as well as Western alienation – the Meech Lake and Charlottetown Accords – produced bitter resentment and division, and they failed to be adopted. 

Yet the Constitution of Canada was not frozen in 1982. The Constitution of Canada was never just a written text or texts. Our Constitution includes constitutional conventions, usages, practices, common law doctrine, and unwritten principles. Through inter-governmental agreements, judicial interpretation, parliamentary resolutions, modern Crown-Indigenous treaty-making, and the evolving character of public discourse and expectations, the Constitution, broadly defined, has changed and is changing. The Constitution has begun to embrace, even if incompletely, tentatively, and implicitly, the values necessary for a peaceful and just multinational state. Patriation did not start the conversation about what “Canada” is, but it had a profound impact on that on-going conversation. Though made in a slightly different context, the words of former Dean Whyte, this time during his oral arguments at the Supreme Court of Canada in the Quebec Secession Reference, seem to capture this constitutional spirit:

“A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation,…when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation.”
 
For many people today, there may be something disconcerting about the image of the Queen signing the document on Parliament Hill on April 17, 1982. The image might be considered a quaint or even troubling reminder of the past and present legacies of Canada’s colonial origins. As a matter of law, what did the Queen sign and how could her signature “bring the Constitution home”? This part of the story is often neglected, but it speaks to the identity of Canada as a sovereign state.

The Constitution Act, 1982, now one of our principal constitutional texts, formed a schedule to the Canada Act, 1982, a statute enacted by the U.K. Parliament at the request of the Canadian House of Commons and Senate and given royal assent in the U.K. a few weeks before, on March 29, 1982. It will be recalled that the only reason the U.K. Parliament retained the authority to amend the Canadian constitution was because Canada itself had requested that the U.K. Parliament retain this power when it renounced all other legal powers over Canada in the Statute of Westminster, 1931. It was better to leave the power of constitutional amendment overseas until federal and provincial governments could agree to an internal amendment formula.

Fifty years later, Canada directed the U.K. Parliament to sever this last, nominal link. The process was, in effect, a reconstitution of old constitutional texts together with the adoption of new texts. The Constitution Act, 1982 is a sort of umbrella text. It redefines the “Constitution of Canada” as including itself as well as a series of older texts that are listed in yet another schedule, the first one on the list being the British North America Act, 1867, now Constitution Act, 1867. 

So, in one sense, the Constitution of Canada is (re)enacted by the Canada Act, 1982, a statute of the U.K. Parliament. Yet in that statute, the U.K. Parliament declares that no Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. The last link was severed and the constitution brought home. Law had finally caught up to reality. Of course, one may ask how, as a matter of constitutional theory, Canada could be an independent state if its Constitution was enacted by a foreign state. There is, in my view, a kind of wonderous paradox here – wonderous because of the unrelenting commitment shown throughout the patriation process to independence through legality rather than revolution. Today, at a time when the great democracy to our south seems to be struggling to defend the idea of peaceful and legal transfers of power, this remains in my view a signal achievement.

The real point of April 17, 1982 is the subtle way that independence through legality was achieved. Remember that the Constitution Act, 1867 remained, and remains, a foundational constitutional text for us, including its recognition that the “Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen”. It is hugely significant, I think, that by its own terms the Constitution Act, 1982 was to come into force “on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.” It was on April 17, 1982, that the Queen signed the proclamation bringing the Constitution Act, 1982, including its redefinition of the “Constitution of Canada”, into force. This proclamation was under the Great Seal of Canada. In signing “Elizabeth R”, the Queen signed not in her capacity as the Queen of the United Kingdom but in her capacity as the Queen of Canada. She signed only because she had been advised – or rather directed – to sign by Ministers of the Crown who were elected members of, and responsible to, the House of Commons of Canada. It would not be wrong to say that, in the end, it was really the counter-signatures of Trudeau and Chrétien on the rain-spotted proclamation of April 17, 1982, that brought the Constitution of Canada “home”.

Mark Walters is Dean and Professor of Law at Queen’s University and recognized as one of Canada’s leading scholars in public and constitutional law, legal history, and legal theory. He has researched and published extensively in these areas, with a special emphasis on the rights of Indigenous peoples, institutional structures, and the history of legal ideas. He held the distinguished F.R. Scott Chair in Public and Constitutional Law at McGill’s Faculty of Law for three years until his appointment as Dean of Law at Queen’s in July 2019. His latest work is A.V. Dicey and the Common Law Constitutional Tradition: ‘A Legal Turn of Mind’ (Cambridge University Press).