Canada's Constitutional Revolution by Barry L. Strayer (review)

Having been a member of the British team responsible for the patriation of the Canadian constitution in 1981-2, I was particularly interested to read this inside account by a senior member of the federal government's team that finally brought patriation to its successful conclusion. Strayer is a constitutional scholar whose involvement in the patriation process began as Secretary of the Saskatchewan provincial delegation to the constitutional conference of 1960-1 and who then went to work in the federal Department of Justice. Strayer does not purport to write the complete history of patriation, but rather 'a narrative of the major issues and events' to which he has added 'some personal experiences and perspectives' (p. xvii).

The book is divided into three parts: the Patriation Process, Political and Pragmatic Origins of the Charter, and Conclusion. In Part I, as well as providing insights into federal thinking and planning over the years, especially during the crucial year from October 1980 to September 1981, Strayer discusses meetings with British ministers and officials at various times. He admits that the federal government placed too much reliance on commitments of successive British governments (of both political persuasions) - commitments that were subsequently qualified by warnings of difficulties at Westminster once the full nature of the request was known. He expresses irritation at what he felt was colonial interference by the Kershaw Committee, but acknowledges that the federal government had 'underestimated the potential for obstruction by parliamentarians [at Westminster]' and that 'our insistence on having a Charter … created many difficulties that probably would not have arisen if patriation alone had been sought' (p. 180). Indeed. It was only when the Supreme Court had ruled and the 5 November deal had been struck that there was any possibility of the package being introduced into and passed by the UK parliament. Strayer says that the Canadian government had remained strongly of the opinion that the Canadian parliament had the legal right to proceed unilaterally if necessary, and considers that the Supreme Court ruling in the Patriation Reference was an example of judicial activism - which encouraged Canadian courts to act similarly in the flood of Charter cases that followed.

Strayer was also one of the main architects of the Charter of Rights and Freedoms. In Part II, he traces the development of Trudeau's belief in the need for a Charter, including the particular influence of constitutional lawyer and political theoretician F.R. Scott and the process of actually formulating the Charter. In Part III, Strayer concludes that the Charter has enhanced national unity, but has been interpreted by the courts (including his own after he was appointed a Federal Judge) in ways that were not foreseen. He asks 'how was Quebec wronged by a process whose propriety was confirmed twice by the Supreme Court of Canada … whose judgment on the matter was deliberately sought by the Government of Quebec?' (p. 278).

Strayer's story of Trudeau's determination to achieve what had eluded Canadian governments for over 50 years combines meticulous legal discussion with personal and political insights that together constitute an important contribution to the literature about the patriation of the Canadian constitution and the Charter of Rights. (He incidentally claims responsibility for first using the term patriation instead of re-patriation.)