Patriation

Etymology and Early Context

The word patriation was coined in Canada as a back-formation from repatriation. Prior to 1982, the power to amend the Canadian constitution was held by the Parliament of the United Kingdom. Some felt the term patriation was more suitable than repatriation, as the constitution was not returning to Canada but arriving for the first time under domestic control. The term was first used in 1966 by Prime Minister Lester B. Pearson in response to a question in Parliament. He stated, 'We intend to do everything we can to have the constitution of Canada repatriated, or patriated.' 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 UK Parliament.

Failed Attempts and the Centennial Stalemate

Several Canadian prime ministers, starting with William Lyon Mackenzie King in 1927, made attempts to domesticize the amending formula. They could not obtain agreement with the provincial governments on how such a formula would work. After the Statute of Westminster granted Canada full legislative independence in 1931, Canada requested that the British North America Act, 1867, be excluded from the laws 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 (No. 2) Act, 1949, granted the Parliament of Canada limited power to amend the constitution in many areas of its own jurisdiction. 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 a new amending formula. In the 1960s, efforts by the governments of prime ministers John Diefenbaker and Lester Pearson culminated in the Fulton, Favreau formula, but without Quebec's endorsement, the patriation attempt failed.

The Trudeau Era and Rising Tensions

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 to 1979 conference, Trudeau prepared to provide some federal concessions with regard to the division of powers, including family law, fisheries, and resources. 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. Trudeau promised unilateral action if the premiers did not agree to patriation in a speech at Maple Leaf Gardens. Patriation was given a new impetus after the 1980 referendum on Quebec independence. Trudeau had 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. Thatcher's reply was that the British Parliament would allow patriation, with provincial approval or not.

The Unilateral Move and the Gang of Six

After negotiations and the leak of the Kirby Memo, which antagonized Quebec, the premiers drafted a list of 10 powers to be devolved to the provinces in exchange for consent to patriation. Trudeau refused to accept it and reiterated his threat to seek the House of Commons' approval to proceed with a unilateral amendment. 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 on the amending formula. The attorneys general of six provinces launched suits in three provincial courts, seeking clarity on whether the federal Cabinet could request the British Parliament pass legislation without provincial support. Trudeau found new allies in Premiers Bill Davis of Ontario and Richard Hatfield of New Brunswick. The federal New Democratic Party, under Ed Broadbent, announced its support after persuading Trudeau to devolve some resource powers to the provinces. However, the premiers of six provinces opposed the charter 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.

The Patriation Reference and a Constitutional Crisis

The Courts of Appeal in Newfoundland, Quebec, and Manitoba delivered their opinions in the second quarter of 1981. The Manitoba and Quebec Courts of Appeal ruled in favour of the federal government. The Court of Appeal of Newfoundland ruled in favour of the provincial government. The case was then appealed to the Supreme Court of Canada. On September 28, 1981, the court ruled in a 7-2 decision that the federal government had the right, by letter of the law, to proceed with unilateral patriation. However, by a different 6-3 majority, the court said that a unilateral patriation was not in accordance with constitutional convention. The court's decision stated that agreement by a 'substantial' number of premiers would be required to abide by the convention. This number was not defined. The decision was controversial and a loss for the premiers. Lévesque would later remark that Trudeau's goals might be unconstitutional and illegitimate, but they were legal. Both the United Kingdom and Canada undertook contingency preparations. Thatcher's British cabinet explored simply unilaterally patriating the constitution to Canada with an amending formula requiring unanimous approval of the provinces. Trudeau began to plan for a referendum proposing a unilateral declaration of independence in the event of a United Kingdom refusal.

The November Conference and the Kitchen Accord

The decision set the stage for a meeting amongst all premiers and Trudeau in Ottawa on November 2, 1981. The conference opened with Trudeau announcing an openness to a new amending formula. On November 4, the premiers' breakfast meeting saw new proposals floated. The Premier of Saskatchewan, Allan Blakeney, would accept a charter without language rights. Premier Bill Bennett of British Columbia would allow Trudeau his language rights provisions in exchange for other considerations. Sterling Lyon of Manitoba and René Lévesque of Quebec were angered and refused to go along. Trudeau launched a new federal initiative to patriate the constitution as it was, but continue debates for two years and hold a national referendum if deadlock resulted. Lévesque, confident he could ensure any referendum on a charter would fail, agreed in principle. Trudeau promptly announced a 'Canada, Quebec alliance' on the issue to the press. The other seven opposition premiers were startled, as campaigning against the protection of rights was generally seen as political suicide. The conference descended again into acrimony. That afternoon, Minister of Justice Jean Chrétien met with Attorney General of Saskatchewan Roy Romanow and Attorney General of Ontario Roy McMurtry in the kitchen of Ottawa's Government Conference Centre. The attorneys general discussed a scenario in which the provinces would agree to the charter and disallowing opting out with compensation. Chrétien agreed to the Vancouver amending formula and reluctantly offered to include the notwithstanding clause. This period would be called the Kitchen Accord.

Exclusion of Quebec and Final Agreement

At the end of the negotiations on November 4, René Lévesque left to sleep in Hull. Before leaving he asked the other premiers to call him if anything happened. Lévesque and his delegation remained ignorant of the agreement until Lévesque walked into the premiers' breakfast and was told the agreement had been reached. Lévesque refused to give his support to the agreement. With an agreement reached among the federal government and nine provinces, the path was clear. The UK Parliament passed the Canada Act 1982 at the request of the Canadian Parliament. The Act stated that no future UK law would extend to Canada as part of its law. On April 17, 1982, Queen Elizabeth II, as Queen of Canada, alongside Prime Minister Pierre Trudeau and Justice Minister Jean Chrétien, signed the proclamation on Parliament Hill. The Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms, the amending formula, and recognizes Aboriginal and treaty rights. The role of the Canadian monarch was not changed by patriation, but all legal authority over Canada's constitution was now entirely domestic.

Content of the 1982 Constitution Act

The Constitution Act, 1982, is the centrepiece of patriation. Its most famous part is the Canadian Charter of Rights and Freedoms. The Charter guarantees fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, and language rights. The Charter applies to all government action. The Act also established a complete domestic amending formula, ending any British role. The general formula requires resolutions from the Senate and House of Commons and from the legislative assemblies of at least two thirds of the provinces that have at least 50 percent of the national population. Other formulas exist for specific matters. It allows Parliament or a provincial legislature to declare that a law shall operate even if it violates certain Charter rights, for renewable five year terms.

Aftermath and National Legacy

The immediate aftermath of patriation was dominated by Quebec's exclusion from the final agreement. The Quebec government, under Premier René Lévesque, never formally consented to the new constitution. This led to a lasting political grievance and subsequent unsuccessful attempts at constitutional reconciliation like the Meech Lake and Charlottetown Accords. Despite this, the Supreme Court of Canada has ruled that the Constitution Act, 1982, applies fully to Quebec. On a national level, patriation was a definitive declaration of Canada's sovereignty. It provided a template for other similar Commonwealth nations. Australia and New Zealand confirmed the total independence of their political processes from the United Kingdom in 1986 through their own acts. Domestically, the Charter has become a powerful element of Canadian law and society. It is frequently invoked in court challenges and public discourse. 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.

Questions about Patriation

What does the word 'patriation' mean?

The word 'patriation' was coined in Canada as a back-formation from the word 'repatriation'. Prior to 1982, the power to amend the Canadian constitution was held by the Parliament of the United Kingdom. Some felt the term 'patriation' was more suitable than 'repatriation' as the constitution was not originally from Canada. The term was first used in 1966 by Prime Minister Lester B. Pearson in Parliament when he stated the intention to have the constitution 'repatriated, or patriated'.

Why did it take so long to patriate the constitution?

The main obstacle for decades was the inability to secure agreement on an amending formula. Provincial governments and the federal government could not agree on a process for how future changes to the constitution would be made. Many premiers were concerned about protecting provincial powers. There was a strong convention requiring substantial provincial consent for such a fundamental change.

What was the 'Kitchen Accord'?

The Kitchen Accord was the informal name for the compromise that broke the deadlock in November 1981. It was negotiated in a kitchen at Ottawa's Government Conference Centre by federal Justice Minister Jean Chrétien, Ontario Attorney General Roy McMurtry, and Saskatchewan Attorney General Roy Romanow. The deal saw the provinces agree to accept the Canadian Charter of Rights and Freedoms. In return, the federal government accepted the provincial Vancouver Formula amending formula. The critical trade was the inclusion of the notwithstanding clause to address provincial concerns.

Did Quebec agree to the patriated constitution?

No, the government of Quebec, led by Premier René Lévesque, did not agree to the final terms of the November 1981 compromise. Lévesque was not present for the final Kitchen Accord negotiations and was not informed of the deal until the next morning. Quebec never formally signed the agreement or passed a resolution of assent. This absence of Quebec's consent has been a source of political tension and constitutional debate in Canada ever since the proclamation in 1982.

How did patriation affect Canada's relationship with Britain?

Patriation formally ended any British legislative authority over Canada. The UK Parliament's Canada Act 1982 stated that no future British law would extend to Canada as part of its law. Canada achieved complete and final sovereignty, with full control over its own constitution. The role of the monarchy was unaffected, as the Queen of Canada is a separate legal office. The process also set a precedent for other Commonwealth nations, showing how to sever their last legislative ties to Westminster, which Australia and New Zealand did in 1986.

Sources: Wikipedia and current public reporting, checked by the Novello Desserts desk. Last updated 2026-10-22.