1982: Patriation and the Charter of Rights and Freedoms

A rainy day in Ottawa

On April 17, 1982, under a grey sky on Parliament Hill, Queen Elizabeth II signed a proclamation. Prime Minister Pierre Elliott Trudeau signed it too. With those signatures, the Constitution Act, 1982 became law, and Canada's Constitution finally belonged fully to Canada.

That day is the starting line for this unit. Almost everything you will study from 1982 to today connects back to it in some way: the fights over Quebec's place in Canada, court cases about First Nations, Métis and Inuit rights, debates over equality, and even arguments about laws passed in 2025 and 2026. In this lesson you will find out what changed in 1982, who was left out, and why historians call it one of the most significant events in modern Canadian history.

Why did Canada need to "bring home" its Constitution?

Canada was created in 1867 by the British North America Act (BNA Act), a law passed by the British Parliament. By 1931 (the Statute of Westminster), Canada could make its own laws. But there was a strange leftover: Canadians had never agreed on a way to change their own Constitution. So to amend the BNA Act, Canada still had to ask the British Parliament to do it.

For decades, prime ministers and premiers tried to agree on an amending formula and failed. The provinces did not agree on how much say each one should have.

After the 1980 Quebec referendum, Trudeau had promised Quebec voters "renewed federalism." He decided to act: he would patriate the Constitution and add a charter of rights. Most provinces objected to parts of his plan. In September 1981, the Supreme Court of Canada ruled in the Patriation Reference that Ottawa could legally ask Britain on its own, but that by constitutional convention (an unwritten rule) it needed a substantial degree of provincial agreement.

So there was one more meeting, in November 1981. During the night of November 4 to 5, a deal was reached between the federal government and nine provinces. Quebec's premier, René Lévesque, was not part of the late-night talks and refused to sign. In Quebec this night is still remembered as la nuit des longs couteaux (the "Night of the Long Knives"). Quebec's National Assembly never approved the Constitution Act, 1982, although the Supreme Court ruled in 1982 that it applies in Quebec anyway.

What the Constitution Act, 1982 did

1. Patriation: Britain passed the Canada Act 1982, its last law for Canada. From then on, only Canada could change Canada's Constitution.
2. An amending formula: most changes need Parliament plus seven provinces with at least 50% of Canada's population (the "7/50 formula"). A few changes, such as changes to the monarchy or to the amending formula itself, need all ten provinces.
3. The Charter of Rights and Freedoms (Part I) was entrenched: written into the Constitution so that an ordinary law cannot take it away.
4. Section 35 recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, defined as "the Indian, Inuit and Métis peoples of Canada."
5. The BNA Act was renamed the Constitution Act, 1867.

Three sections every Grade 10 historian should know

Section 1: rights have reasonable limits. The Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In plain words: governments can limit a right, but they must prove the limit is reasonable. Hate propaganda laws, for example, limit free expression, and courts have upheld them as reasonable limits.

Section 33: the notwithstanding clause. This was the compromise that won over several premiers in November 1981. It lets Parliament or a provincial legislature declare that a law will operate notwithstanding (in spite of) section 2 and sections 7 to 15. The override expires after five years unless it is passed again. It cannot be used on democratic rights, mobility rights or language rights. For years it was rarely used outside Quebec. In recent years it has been used or threatened more often, for example by Quebec for its secularism law (Bill 21, 2019) and by Ontario and Saskatchewan. Whether that is healthy democracy or a danger to rights is one of today's big debates.

Section 35: Aboriginal and treaty rights. First Nations, Métis and Inuit leaders fought hard for this. In 1980, the Constitution Express carried hundreds of First Nations people by train from British Columbia to Ottawa to demand a voice. The November 1981 deal at first dropped Aboriginal rights. After protests, the clause was put back, but with the word "existing" added. What counts as an "existing" right has been argued in court ever since (you will study those cases in a later lesson). Women's groups also lobbied successfully for section 28, which guarantees Charter rights equally to men and women.

The courts get a bigger role

Before 1982, courts mostly asked one question about a law: did the right level of government pass it? After 1982 they could also ask: does it violate the Charter? This is called judicial review. A few landmark cases show the change:

• ***R. v. Big M Drug Mart* (1985):** the Supreme Court struck down the federal Lord's Day Act, which forced Sunday closing for religious reasons. It violated freedom of religion.
• ***Singh v. Minister of Employment and Immigration* (1985): refugee claimants in Canada are entitled to a fair hearing under section 7**. Canada created the Immigration and Refugee Board in response.
• ***R. v. Oakes* (1986): created the Oakes test**, the step-by-step method courts still use for section 1.
• ***Andrews v. Law Society of British Columbia* (1989): the first big section 15** equality case.
• ***Mahe v. Alberta* (1990): under section 23**, French-language minorities can have a say in managing their own schools. This helped lead to Ontario's French-language school boards in 1998.
• ***Vriend v. Alberta* (1998): Alberta's human rights law had to protect people from discrimination based on sexual orientation**.

Supporters say the Charter protects minorities from the majority. Critics have argued that it gives unelected judges too much power over elected legislatures. Section 33 was designed as a balance between the two.