Patriation
Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because, at the time, under the Statute of Westminster, 1931, and with Canada's agreement, the British Parliament retained the power to amend Canada's British North America Acts and to enact, more generally, for Canada at the request and with the consent of the Dominion. That authority was removed from the UK by the enactment of the Canada Act, 1982, on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.
A proclamation bringing the Constitution Act, 1982, into effect was signed by Elizabeth II, as Queen of Canada, Prime Minister Pierre Trudeau, and Minister of Justice Jean Chrétien on April 17, 1982, on Parliament Hill in Ottawa. The patriation process saw the provinces granted influence in constitutional matters and resulted in the constitution being amendable by Canada only and according to its amending formula, with no role for the United Kingdom.
The monarch's constitutional powers over Canada were not affected by the act. Canada has complete sovereignty as an independent country; the role of the monarch of Canada is distinct from that of the monarch of the UK or any other Commonwealth realm.
The Constitution Act, 1982 formed the template for the removal of the British Parliament's powers over other similar Commonwealth realms. In 1986, the Australia Act 1986 and the Constitution Act 1986 also confirmed the total independence of the two countries' political processes from the United Kingdom.
Etymology
The word patriation was coined in Canada as a back-formation from repatriation. Prior to 1982, power to amend the Canadian constitution was held by the Parliament of the United Kingdom ; hence some have felt that the term patriation was more suitable than the term repatriation. The term was first used in 1966 by Prime Minister Lester B. Pearson in response to a question in Parliament: "We intend to do everything we can to have the constitution of Canada repatriated, or patriated."Early attempts
From 1867, the constitution of Canada was primarily contained in the British North America Act, 1867 and other British North America Acts, which were passed by the Parliament of the United Kingdom. Several Canadian prime ministers, starting with William Lyon Mackenzie King in 1927, had made attempts to domesticize the amending formula, but could not obtain agreement with the provincial governments as to how such a formula would work. Thus, even after the Statute of Westminster granted Canada and other Commonwealth nations full legislative independence in 1931, Canada requested that the British North America Act, 1867, be excluded from the laws that were now within Canada's complete control to amend; until 1949, the constitution could only be changed by a further act at Westminster. The British North America Act, 1949, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction, without involvement of the United Kingdom. The constitution was amended in this manner five times: in 1952, 1965, 1974, and twice in 1975.Negotiations continued sporadically between federal and provincial governments on the development of a new amending formula in which the United Kingdom would have no part. In the 1960s, efforts by the governments of prime ministers John Diefenbaker and Lester Pearson, including the Confederation of Tomorrow conference in Canada's centennial year, culminated in the Fulton–Favreau formula, but without Quebec's endorsement, the patriation attempt failed.
File:Jimmy Carter with Queen Elizabeth - NARA - 174724.jpg|thumb|Pierre Trudeau with Elizabeth II at Buckingham Palace, 1977
In 1968, Pearson was succeeded by Pierre Trudeau, who also advocated patriation. He made several attempts, including the Victoria Charter in 1971 and more proposed amendments in 1978. At the 1978–1979 conference, Trudeau prepared for the first time to provide some federal concessions with regard to the division of powers, including family law, fisheries, and resources. However, the other premiers balked, which led to speculation they were waiting to see if the more province-friendly Progressive Conservatives would win the coming federal election. In that campaign, the Liberals ran on constitutional change, including a speech at Maple Leaf Gardens in which Trudeau promised unilateral action if the premiers did not agree to patriation.
Patriation achieved
Patriation was given a new impetus after the 1980 referendum on Quebec independence, before which Trudeau promised a new constitutional agreement if the majority of Quebecers voted "No". As the referendum did result in a majority rejecting separation, Trudeau approached his British counterpart, Margaret Thatcher, to inform her the Canadian government wanted to patriate the constitution. Thatcher's reply was that the British Parliament would allow this, with provincial approval or not.After a number of days of negotiation between Trudeau and the premiers and the leak of the Kirby Memo by an "internal federal source", which antagonized Quebec, the premiers consulted at the Chateau Laurier and drafted a list of 10 powers to be devolved to the provinces in exchange for consent to patriation. Trudeau, when presented with the document, refused to accept it and reiterated his threat that he would seek the House of Commons' approval to proceed with a unilateral amendment. Faced with Premier of Manitoba Sterling Lyon's charge that it would "tear the country apart", Trudeau responded that, if Canada could not have control of its own constitution and a charter when most provinces had their own, the country would deserve to be torn apart. This led Thatcher to take a less certain view of how things might proceed through the British legislature, sensing the provincial opposition would make the legislation controversial in Parliament.
Canada Bill and provincial opposition
Trudeau announced his belief that the premiers were dealing in bad faith and met with his caucus to propose a new course. After offering a wide range of options and proposing full reform, a Quebec MP shouted "Allons-y en Cadillac!". Taking the proposal to Cabinet, some ministers suggested using the manoeuvre to increase federal power over the economy, but Trudeau demurred, replying "we shouldn't upset the balance". On October 2, 1980, he announced on national television his intention to proceed with unilateral patriation in what he termed the "people's package". The proposal would request patriation from the UK Parliament, as well as the entrenchment of a charter of rights, and would call for a referendum to be held within two years on the amending formula for the new constitution, which would be a choice between the Victoria Charter veto formula and any joint proposal by the provinces that could be approved by provinces totalling 80% of the population. In the same month, the attorneys general of six provinces launched suits in three provincial courts, seeking clarity on whether or not the federal Cabinet could request the British Parliament pass legislation that would alter the balance of power between the provincial and federal crowns without the support of provincial governments. The British government became adverse to introducing any bill that might be found to be unconstitutional.Trudeau found new allies in Premiers Bill Davis and Richard Hatfield and the federal New Democratic Party, under Ed Broadbent, announced its support after persuading Trudeau to devolve some resource powers to the provinces. The prime minister's proposal in the House of Commons, which would be tabled as the Canada Bill, invited Aboriginal, feminist, and other groups to Ottawa for their input on the charter of rights in legislative committees. However, there was disagreement over the charter, which the premiers of six provinces opposed as encroachments on their power; the press dubbed them the Gang of Six. Manitoba, Newfoundland, and Quebec launched references to their respective Courts of Appeal asking if the Canada Bill was constitutional. Nova Scotia and Saskatchewan remained neutral.
At the insistence of British Columbia, the premiers who opposed unilateral patriation drafted an alternative proposal to showcase the disagreement between the sides and to counter the federal government's charges of obstructionism if the document were to proceed to Westminster. The idea was for patriation to take place with no charter of rights and the amending formula would permit amendment with the approval of seven provinces consisting of 50% of the population, referred to as the Vancouver Formula. The premiers' innovation was a clause allowing for dissenting provinces to "opt out" of new amendments that superseded provincial jurisdiction and receive equivalent funding to run a substitute programme if two-thirds of the members of the provincial legislature acquiesced. Nova Scotia and Saskatchewan approved of this, prompting the press to now call the opposition premiers the Gang of Eight.
Trudeau rejected the proposed document out of hand and again threatened to take the case for patriation straight to the British Parliament " bothering to ask one premier". The federal Cabinet and Crown counsel took the position that if the British Crown—in Council, in Parliament, and on the bench—was to exercise its residual sovereignty over Canada, it did so at the request of the federal ministers of the Crown only. Further, officials in the United Kingdom indicated that the British Parliament was under no obligation to fulfill any request for legal changes made by Trudeau, particularly if Canadian convention was not being followed. The British Commons Foreign Affairs Committee drafted a report in January 1981 stating it would be wrong for the Parliament of the United Kingdom to enact the proposals regardless of the provincial opposition.