How a Midnight Kitchen Talk Helped Shape Canada’s Identity
Originally published in TEACH Magazine, 40 Years of the Canadian Charter of Rights and Freedoms Special Issue, 2022
By Carolyn Gruske
The setup almost sounds like a joke: Three politicians walk into a hotel kitchen one evening—a federal Liberal, an Ontario Progressive Conservative, and a New Democratic Party member from Saskatchewan. They walk out with a deal to make Canada a truly independent nation, change the way the country is governed, set an example to the rest of the world about how to entrench modern human rights into law, and reshape the sense of Canadian identity.
But the scenario is no joke. In reality, it’s one vital step in the long journey that ultimately led to the patriation of the constitution and the creation of the Canadian Charter of Rights and Freedoms.
The Charter was adopted into law on April 17, 1982, when Queen Elizabeth II took to the stage in Ottawa to sign the documents that would officially put Canada in charge of its own constitution—an act referred to as “patriation”—and strip the final remnants of control away from the hands of United Kingdom parliamentarians.
Canada’s constitution defines the three branches of government (executive, legislative, and judiciary) and sets out which areas of governance fall under federal or provincial jurisdiction. The Charter, which is officially viewed as a part of the Constitution of Canada, establishes the rights and freedoms that are necessary for Canadians to live in a free and democratic society. It is powerful, but not absolute; the rights defined by the Charter can be limited and even temporarily overridden. This feature is, in part, what allowed the constitution to finally be patriated, and serves as an example of modern human rights legislation.
Since its official founding as a country in 1867, Canada has been governed by a written constitutional document. The British North America (BNA) Act as it was then called (after patriation, it was renamed the Constitution Act, 1867) differed from the Constitution of the United States in that it wasn’t a self-governing document. Instead, it was a statute under the control of the U.K. Parliament.
It established how the British colonies of Nova Scotia, New Brunswick, and the Province of Canada (Ontario and Quebec) could be united, and how the new country would be governed, dividing up powers and responsibilities between the federal government and the provinces. The BNA Act did not address human rights and there was no amending formula, meaning Canada could not change it without the approval of U.K. politicians.
Quebec Nationalism and Human Rights
After witnessing the atrocities committed during World War II, human rights became the focus of political debates and reforms around the world. The Universal Declaration of Human Rights was proclaimed by the United Nations in 1948, and provided a basic blueprint for countries to build upon. Canada was no different. In 1960, parliament enacted the Canadian Bill of Rights.
As Eric M. Adams, constitutional scholar, historian, and a professor at the University of Alberta’s faculty of law, explains, the Bill attempted to resolve questions about human rights in Canada “in a kind of classic Canadian way… with a compromise.” Rather than setting the rights into the constitution, which would require an amendment, the rights would be established via a statute with the promise “that the laws of Canada would respect these rights and freedoms,” he says.
“It didn’t take that long for people to criticize this effort as being inadequate,” Adams notes. “Its actual legal impacts were unclear [regarding] how could a law of parliament override a different law of parliament… Other than in a few small examples, the Bill of Rights, at least in terms of its legal interpretation, did not amount to much.”
During this time, there was a growing sense of nationalism in Quebec, which culminated in a referendum in May of 1980 to decide if the province should remain part of the Canadian federation or negotiate for more independence and a new constitutional arrangement. The province’s premier at the time, René Lévesque, won power by campaigning for separation.
Federal politicians stood against separation, especially Prime Minister Pierre Elliott Trudeau, whose Liberals won a majority election in February 1980, in part due to Trudeau’s insistence that his government would address the concerns of Quebec and renegotiate federalism, an action that would necessitate constitutional reform. When the referendum votes were counted, almost 60 percent of Québécois voted to remain in Canada.
“What Trudeau meant was that they were actually going to entrench [what are now called] Charter rights for French Canadians to protect them inside Canada forever, which meant he was committed to patriation and also to finding an amending formula,” explains Ron Graham, a journalist who not only authored books about constitutional history, but who also edited the memoirs of Trudeau and Prime Minister Jean Chrétien.
The Patriation Process
Without an amending formula, there was no roadmap for altering the constitution. Federal and provincial politicians began travelling the country, meeting with Canadians and listening to proposals about how the constitution should be amended, but even after months of that, no consensus could be reached. The federal and provincial views remained miles apart.
The provinces of Newfoundland, Quebec, and Manitoba, brought cases before the Supreme Court of Canada, essentially asking whether the federal government could act unilaterally to change the constitution by approaching the U.K. Parliament. In 1981, the Court declared that, yes, the federal government could take that step on its own, but changes that limited the powers of the provinces should be made with their consensus.
Making one last attempt to create consensus, federal and provincial politicians joined together to form the Continuing Committee of Ministers on the Constitution, co-chaired by future Prime Minister Jean Chrétien, who was serving as federal justice minister, and future Saskatchewan NDP Premier Roy Romanow, who was his province’s attorney-general at the time.
The committee was at an impasse. The provinces wanted to cement control over natural resources, communications, and language. They were concerned about a loss of power and many of them—Quebec in particular—objected to Ottawa’s plan to include a rights section that could override provincial power.
“I would say that the fear by many of the premiers and provincial governments was the loss of identity, which wasn’t exclusively Quebec and French Canada versus English Canada,” says Romanow, while sharing his thoughts on the patriation process with TEACH. “Quebec, of course, did not want this to be established because the nine judges of the Supreme Court of Canada appointed by Ottawa, not by Quebec, were ultimately going to determine what the Charter of Rights and Freedoms said.”
Over the course of a four-day federal-provincial conference in Ottawa during November of 1981, no agreement could be reached. On the third day, Trudeau floated the idea of a national referendum.
That evening, spurred by the possibility of a referendum and knowing it was the last opportunity to reach a compromise, Chrétien, Romanow, and Ontario Attorney-General (and Progressive Conservative) Roy McMurtry met in a kitchen at the Château Laurier hotel (where all of the provincial delegations were staying, except for Quebec), and cobbled together an agreement.
During the night, premiers and delegations who weren’t part of the “Kitchen Accord” (with the exception of Quebec) were briefed on the deal. At breakfast the following morning, Lévesque was presented with the agreed-upon compromise. He angrily announced that he had been betrayed by the other premiers during “the night of the long knives.”
Although Quebec never agreed to the terms, the government had successfully engaged in a meaningful consultation process and had won the agreement of the vast majority of the provinces, meaning patriation could move forward. After undergoing some further discussions and fine-tuning, the essence of the Kitchen Accord compromise, which included both the Canadian Charter of Rights and Freedoms and a notwithstanding clause, is what now constitutes the Constitution of Canada.
The Notwithstanding Clause and Other Rights Limitations
Key to the Kitchen Accord was a concept called the “notwithstanding clause,” which became Section 33 of the Constitution. Section 33 allows a government to overrule even the most basic human rights provisions of the Charter for a period of up to five years.
Romanow calls the notwithstanding clause “the last-minute saviour” of the deal. “It’s kind of an awkward provision,” he says. “Here you’ve got a Charter of Rights and Freedoms like the Americans do. But then we had a provision saying: you can bypass it. But that was the way it had to be, that’s the only way we could compromise. Our country is very much a great country, a beautiful country, but it’s also complicated with respect to various different regions and histories.”
One of the functions of the notwithstanding clause, explains Y.Y. Chen, an assistant professor in the University of Ottawa’s faculty of law, is to “ensure that [when] there are some instances where … legislatures just clearly disagree with the judges’ interpretation of certain rights, they can still go ahead and do what they believe is in the public interest.”
A second function, Chen continues, is to “allow the courts to be bolder when it comes to the interpretation of rights, because the courts now can say, ‘Whatever we say is not going to be the last word when it comes to rights interpretation. We need not worry about the political repercussions. If the politicians don’t like what we say, they always have the option of invoking Section 33 and trying to explain that to the electorate.’ Some scholars say that actually strengthens rights protection in an indirect way, fostering that dialogue between the legislature and the court, allowing the court to be braver when it comes to rights interpretation.”
It is not only the notwithstanding clause that places limits on Charter rights. Section 1 of the Charter references “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, it limits itself, and gives governments what they believe are the tools necessary to enact laws for the good of society, according to Javier Torres, an interpretative program developer at the Canadian Museum for Human Rights.
“[Section 1] comes into play all the time,” Torres says. “If our rights are limited, that has to be justified. The government has to justify it because those limits should help us build a more democratic society. For example, [laws against] hateful speech and the willful promotion of hatred [are] limit[s] imposed on our freedom of expression, but … that type of legislation is intended to promote our diversity as a country.”
A Reflection of Its Time
The proposed Charter that came out of the Ottawa meeting was very similar to the Charter of today, with a few major exceptions, such as the rights of women and Indigenous peoples.
Women’s rights (Section 28) were eventually added after lobbying from women’s groups across the country. Section 25 makes reference to Indigenous rights, but doesn’t go much beyond saying the Charter should not “abrogate or derogate from any aboriginal, treaty or other rights,” leaving much room for debate and interpretation.
As to why those rights were neglected in the initial Charter, the reasons are complicated, says Ron Graham. “Some people will just say it was a mistake: you’ve got a bunch of men sitting in a room, and they’re thinking of other things. Certainly, once it was pointed out, it was very quickly solved.” But, he adds, that reasoning doesn’t excuse the oversight or provide the entire picture. Graham explains that Indigenous rights were seen as a possible threat to the power of the provinces, especially when it came to control of natural resources.
Also, he says, Trudeau’s own approach to rights proved to be a barrier to inclusion. Specifically, Trudeau disliked the idea of collective rights. “Whether the collectivity was women, or whether the collectivity was Indigenous [peoples], or whether the collectivity was Francophones, [Trudeau’s] argument was that rights belong to an individual,” Graham notes. “You own the rights as an individual [and not as a collective group of individuals] … I think women’s rights got caught up in that.”
There are other specific rights that weren’t directly included in the Charter, but, through court action, have become rights that Canadians can expect, and have given the document a life that reflects and drives today’s values, says Eric Adams.
“I think when you look at things like the arrival of same-sex marriage, the legalization of medical assistance in dying, some of the most fundamental changes around the protection of the criminal trial process and the protection of the presumption of innocence… there are places you can point to and say, the Charter mattered,” he says.
“I think the Charter has had an impact on how Canadians perceive of their own rights,” Adams adds. “It has had an impact on what we might call our broader constitutional culture—that equality rights, the freedom of religion, that rights to life, liberty, and security of the person are fundamental to what it means to be Canadian, and that the law recognizes and protects that.”
Carolyn Gruske is an award-winning reporter and magazine editor. She often writes about the intersection of business, technology, and the law, but she also has a deep interest in educational topics.