Trudeau's Threat: The Referendum at Patriation

29 Pages Posted: 15 Sep 2020

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: August 3, 2020

Abstract

As Canada limped toward Patriation in the early 1980s after decades of failed attempts at multilateral agreement among federal and provincial governments, the prospects for success seemed as dim as ever before. The people were divided, their premiers could not reach agreement, and the Supreme Court complicated matters when it ruled quite controversially that substantial provincial consent was needed to finally bring the constitution home.

Fearing defeat and seeing no profitable path forward in consultation with the country’s premiers, Prime Minister Pierre Trudeau considered the nuclear option: he would go over the heads of the premiers directly to the people in a national referendum to ratify a new constitutional settlement and patriate the constitution. Trudeau ultimately relented, negotiated the terms of a new constitutional bargain with the premiers, and Patriation succeeded with the agreement of most provincial premiers. But could the unilateral referendum strategy have been a better path?

In this paper prepared for a conference on “The Legacy of Pierre Elliott Trudeau,” I return to Trudeau’s threat to ask whether his unilateral referendum would have given the Constitution of Canada the formal democratic legitimacy it lacks today. I also situate Trudeau’s threat in the larger global landscape of constitutional politics to demonstrate that his unilateral referendum strategy is not uncommon.

Keywords: Constitution of Canada, Patriation, Constitution Act 1982, Constitutional Amendment, Referendum, Pierre Trudeau, Charles de Gaulle, David Cameron

Suggested Citation

Albert, Richard, Trudeau's Threat: The Referendum at Patriation (August 3, 2020). Available at SSRN: https://ssrn.com/abstract=3665025 or http://dx.doi.org/10.2139/ssrn.3665025

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