Tag Archives: proclamation

What was really signed on Parliament Hill 40 years ago, on April 17, 1982?

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By Natasha Dubois

There are many terms used to describe this particular moment in Canadian history: patriation of the Constitution, signing of the Constitution, signing of the Charter, and more. All of these terms are both correct and incomplete.

Yes, the Canadian Constitution was indeed patriated 40 years ago, in the sense that only Canada has the power to amend it now, not the United Kingdom. It was not signed, however, because it was a legislative act of the British Parliament. British and Canadian laws are proclaimed, not signed, by the head of state. As for the Canadian Charter of Rights and Freedoms, it is not even a document, so it cannot be officially signed.

So what document was actually signed on April 17, 1982?

On that date, Queen Elizabeth II signed the Proclamation of the Constitution Act, 1982 (Schedule B of the Canada Act 1982, proclaimed by the United Kingdom a few weeks earlier), which gives Canada the power to amend its own constitution and includes, among other things, the wording of the Canadian Charter of Rights and Freedoms.

A page of coloured calligraphy. The Canada Coat of Arms and a few signatures are at the top centre, with other signatures at the bottom centre.

Proclamation of the Constitution Act, 1982. Damaged slightly by rain during the signing ceremony, this version is informally known as the “raindrop” copy (e008125379)

So, then, what is the Charter?

 We often see posters of the Canadian Charter of Rights and Freedoms, with the Canada Coat of Arms and the signature of the prime minister, but if this is not an official document, then what is it?

A typewritten page in colour. The Canada Coat of Arms is at the top centre, and a drawing of the main Parliament Building is at the bottom centre. There is a signature in the bottom-right corner.

Poster published by the Government of Canada to promote the Canadian Charter of Rights and Freedoms (e010758222_s1-v8)

Contrary to popular belief, the Canadian Charter of Rights and Freedoms is not a document in and of itself. It is actually Part I of the Constitution Act, 1982 and was presented in poster format in 1985. This poster was never officially signed or proclaimed, since it is not a complete proclamation or legislative act. It is also missing the Great Seal of Canada, which must be affixed to all proclamations and certain official documents of Canada.

In 1985, after all of the provisions of Part I of the Constitution Act, 1982 came into force, the government wanted to promote its contents (that is, the Canadian Charter of Rights and Freedoms). To do so, it created posters that looked like an official document, with a stamped signature of the prime minister of the day, and distributed more than 250,000 copies to schools, libraries and public places across Canada. Today, the Charter poster can be downloaded (PDF format) or a printed version can be ordered (certificate or poster) from the Canadian Heritage website. Unfortunately, there is no official original version of this poster in the collections held at Library and Archives Canada (LAC).

The Canadian Charter of Rights and Freedoms is available in 29 languages and seems to have served as a model for the creation of several other constitutions and charters of rights throughout the world. It has also inspired hundreds of works in Canadian literature, many of which have been acquired by LAC through legal deposit: legal treatises, theses and dissertations, professional journal articles, popular works and even children’s literature.

So, what was signed on April 17, 1982?

On March 29, 1982, the United Kingdom proclaimed the Canada Act 1982, Schedule B of which is the Constitution Act, 1982, which applies only to Canada. On April 17, 1982, Queen Elizabeth II signed the proclamation bringing the Constitution Act, 1982 into force for Canada.

According to British and Canadian rules, before legislation comes into force, it must go through a number of steps. First, the bill must be introduced in both chambers of Parliament, where it is discussed and debated before being passed by each chamber. The act must then be proclaimed by the head of state, that is, through royal assent (the Queen’s or the Governor General’s signature). Following the adoption of the Canada Act 1982, the Government of Canada itself drafted the text for the Proclamation of the Constitution Act, 1982, which the Queen agreed to sign in Ottawa on April 17, 1982. As with all previous Canadian proclamations, the other signatories were the Registrar General of Canada and the Attorney General of Canada. The Prime Minister of Canada also signed the 1982 proclamation, although this was not essential for the document to be considered official.

In fact, the signing ceremony of April 17, 1982, was only the public display of the real political event occurring at the time: Canada’s acquisition of the last political power that it needed to become a truly sovereign state. Until then, only the British Parliament had the power to amend Canada’s Constitution, under the British North America Act of 1867.

In enacting the Canada Act 1982, the United Kingdom agreed that no subsequent act of the Parliament of the United Kingdom would have effect in Canada. This act was also the only British law to be written in both English and French since the Middle Ages.

The Constitution Act, 1982 (Schedule B of the Canada Act 1982) affirms the primacy of the Canadian Constitution over any other law and defines what constitutes the Canadian Constitution (Part VII). This act also sets out the procedures for amending the Canadian Constitution (Part IV), and contains sections on the rights of Indigenous peoples (Part II) and the Canadian Charter of Rights and Freedoms (Part I).

This is why the Charter is said to be enshrined in the Canadian Constitution. The Charter cannot be amended without amending the Constitution, because the Constitution Act, 1982 is an integral part of the Canadian Constitution (Part VII). The constitutional amendment procedures (Part V) would have to be used. This also explains why the Charter takes precedence over all other legislation in the country, because it is one of the components of the Constitution.

In conclusion, there is no single document that can be called the “Charter.” Multiple reproductions of the text that makes up the Canadian Charter of Rights and Freedoms are available free of charge. Even though LAC does not have the original poster of the Charter, it does preserve in its collections parchment facsimiles of all six of Canada’s constitutional documents: the Royal Proclamation (1763), the Quebec Act (1774), the Constitution Act (1791), the Act of Union (1840), the British North America Act (1867) and the Canada Act 1982. This collection of parchment copies of the documents was given to Canada by the United Kingdom after the signing of the Proclamation of the Constitution Act, 1982. Approximately 40 pages long, the Canada Act 1982 comes closest to being the original version of the Canadian Charter of Rights and Freedoms. In some ways, this constitutional text can be considered to be our national copy of the Charter.

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Natasha Dubois is an archivist in the Government Archives Division at Library and Archives Canada.

Canada’s first declaration of war

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By J. Andrew Ross

Among the rarest documents at Library and Archives Canada (LAC) are those signed by Canada’s monarchs, and they represent some of the most important moments in the nation’s history. As part of our digitization programme, we recently scanned one such document that resides in the Ernest Lapointe fonds: a single sheet of paper that marks Canada’s entry into the Second World War.

A typed, one-page document asking the the king to authorize a proclamation of war on the German Reich on September 10, 1939.

Submission requesting the king’s approval to issue a proclamation declaring a state of war with the German Reich, September 10, 1939 (Ernest Lapointe fonds, e011202191)

Signed by Prime Minister William Lyon Mackenzie King, the document is a request for permission to issue a proclamation declaring war against the German Reich. The king indicated his approval with a handwritten “Approved” and a signature: “George R[ex]. I[mperator].” Though a seemingly straightforward document, the date—September 10, 1939—raises a question. While this was indeed the day Canada declared war, as Lester Pearson (then working at Canada’s High Commission in London) observed, “some historian of the future will wonder how George VI and Mackenzie King could have been together on September 10th 1939.” (Pearson, Memoirs, 139) In the era before supersonic transatlantic air travel and the wireless transmission of documents it would have been impossible for Mackenzie King (in Ottawa) and the King George VI (in London) to have signed the same document on the same day.

The answer to this conundrum can be found in LAC’s collections, and further research shows that this document was just one of several that had to be created to resolve a problem Canadian officials had never encountered before: How do we declare war?

As the prospect of Germany invading its neighbours grew in 1939, Canada expected to have a role in the resulting conflict. Unlike the onset of the First World War, when British dominions like Canada had been assumed to be included in the British declaration of belligerency against the Central Powers, Canada now had the option of making its own decision. In 1926, the Balfour Declaration had established that the United Kingdom and the dominions were now autonomous in domestic or external affairs, and this had been formally enshrined in the Statute of Westminster of 1931.

Fast forward to September 1939. As the Blitzkrieg rolled across Poland, prompting the UK to declare war against the German Reich on September 3rd, it was now up to Canada to decide its own fate—to join in, or to stay neutral. Most Canadians generally understood that Canada would be involved, if not militarily then at the very least economically, but Prime Minister William Lyon Mackenzie King wanted parliament to formally endorse the decision to enter the war. It did so on Saturday, September 9th.

Major policy announcements such as declarations of war also required a formal proclamation to be issued by the governor general on the advice of the Cabinet of Canada. This advice was in the form of a formal request signed by a cabinet minister, called a submission, to the governor general. To issue a proclamation in this case, there were two obstacles to overcome.

First, despite the independence given by the Statute of Westminster to Canada to make its own decision to go to war, it turned out that the Canadian governor general himself did not actually have the power to approve a proclamation declaring war, so the government required the permission of George VI himself, as king of Canada. After the House of Commons vote on September 9th, the Department of External Affairs asked Canada’s high commissioner to Great Britain, Vincent Massey, to arrange an audience with the king to get His Majesty’s signature on a document approving the issue of the proclamation. On the morning of September 10th, Massey hopped into his son Hart’s sports car and was driven to see the king at the Royal Lodge, the monarch’s country retreat on the grounds of Windsor Castle. Massey got the royal signature and cabled the news back to Ottawa, where Mackenzie King was anxiously awaiting the news and convincing himself that “the enemy” might have contrived “to destroy the [transatlantic] cable between Canada and England.” (WLMK Diary)

The other obstacle was that the two-page document that the king had approved had been written out in longhand from a telegram and was not signed by a cabinet minister, as was required. For this reason, External Affairs referred to this as an “informal approval” document and promised that a formal (signed) submission would soon follow.

Even before the king’s approval had been received, the proclamation had been drawn up and signed by Governor General Lord Tweedsmuir (in the name of the king), Prime Minister Mackenzie King, and Minister of Justice Ernest Lapointe.

A proclamation, bearing the Great Seal of Canada, announcing that Canada was at war against the German Reich.

Proclamation of war against the German Reich, September 10, 1939. Note that the day (“tenth”) is handwritten in the document (Registrar General sous-fonds, e011202192)

The staff of the Government Printing Bureau also produced a published version as an “Extra” edition of The Canada Gazette, the official organ for conveying government announcements. The Printing Bureau staff were locked into their office on Saturday and Sunday, to preserve secrecy, and were released only after the arrival of the published Gazette at the offices of External Affairs (then in East Block on Parliament Hill). The time of delivery was 12:35 p.m. EDT (another source says 12:40 p.m.), and by pre-arrangement this was agreed to be the moment that Canada could be considered to be officially at war against the German Reich.

But was it?

A printed, bilingual declaration of war against the German Reich bearing three signatures across the page.

The Canada Gazette “Extra”, September 10, 1939, the published version of the proclamation of war against the German Reich. Curiously, this copy is autographed by Tweedsmuir, Mackenzie King, and Lapointe (Arnold Danford Patrick Heeney fonds, e011198135)

On October 24th, six weeks after Canada’s announcement, Massey cabled External Affairs asking when the formal submission with a minister’s signature would be received, as had been promised. The king’s private secretary, Sir Alexander Hardinge, had told Massey he was concerned that “the document which the King signed on the basis of cabled representations may well have no constitutional validity owing the fact that it did not and could not bear the actual signature of the minister.” In other words, there was some question as to whether Canada was technically at war at all.

External Affairs went into action and sent a typewritten document signed by the prime minister and backdated to September 10th. King George VI signed this on November 27th and returned it to Ottawa. So it took two-and-a-half months after Canada had declared war for the official documents to catch up to the event!

In the end, there are four key items that document Canada’s first declaration of war: the informal approval created from a telegram and signed by King George VI; the proclamation issued by the governor general; the “Extra” of The Canada Gazette; and the backdated formal submission signed by both Mackenzie King and the king. Three of these documents reside in LAC’s collections and are reproduced above, but the whereabouts of the first—the informal approval from the King—is unknown. There is a clue, however: we know that over the fall and winter of 1939–1940 Massey had actually refused several requests to send the document back to Canada, saying that Buckingham Palace did not want it “embodied in the records of the Canadian government” because of its dubious constitutional status (Pearson, Memoirs, p. 140). Lester Pearson, who was second-in-command to Massey, later wrote that he understood that the document had remained in London, “though whether in the possession of His Majesty or the Canadian High Commissioner, I never learned.” (Ibid.)

By J. Andrew Ross, archivist in the Government Archives Division, with contributions from Geneviève Couture, archival assistant in the Private Archives Branch, Library and Archives Canada.

Guest curators: J. Andrew Ross and Michael Smith

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Banner for the guest curator series. CANADA 150 is in red along the left side of the banner and then the bilingual text: Canada: Who Do We Think We Are? and under that text is Guest curator series.Canada: Who Do We Think We Are? is a new exhibition by Library and Archives Canada (LAC) marking the 150th anniversary of Canadian Confederation. This exhibition is accompanied by a year-long blog series.

Join us every month during 2017 as experts, from LAC, across Canada and even farther afield, provide additional insights on items from the exhibition. Each “guest curator” discusses one item, then adds another to the exhibition—virtually.

Be sure to visit Canada: Who Do We Think We Are? at 395 Wellington Street in Ottawa between June 5, 2017, and March 1, 2018. Admission is free.

Signing of the Proclamation of the Constitution Act, 1982 bringing into force the Charter of Rights and Freedoms, by Robert Cooper, 1982

Woman in blue sitting at a desk signing a paper. Four men in suits surround her; two leaning over the desk, one sitting to the side, and the fourth standing back to the side.

Photograph of the Signing of the Proclamation of the Constitution Act, 1982 by Robert Cooper. (MIKAN 3206003) © Government of Canada

The Signing of the Proclamation of the Constitution Act, 1982, photographed by Robert Cooper in 1982.

Tell us about yourselves

Michael Smith spearheaded an initiative to design and fabricate custom preservation storage cases for two of LAC’s most prestigious documents, both copies of the Proclamation of the Constitution Act, 1982. J. Andrew Ross is responsible for the records of the Registrar General (RG68), which is the repository for all the proclamations of the Government of Canada.

Is there anything else about this item that you feel Canadians should know?

Pale yellow-white document in red and black ink with Canada’s coat of arms at the top.

Proclamation of the Constitution Act, 1982. (MIKAN 3782519) © Government of Canada

The Proclamation of the Constitution Act, 1982 was signed on the steps of the Parliament Buildings in Ottawa on April 17, 1982 by Queen Elizabeth II, Prime Minister Pierre Trudeau, Attorney General (Minister of Justice) Jean Chrétien, and Registrar General (Minister of Consumer and Corporate Affairs) André Ouellet. The Proclamation, which is the only Canadian foundational document signed by the monarch, brought into force the Constitution Act, 1982, amending Canada’s constitution and enacting the Canadian Charter of Rights and Freedoms. The signing followed several years of constitutional negotiations in Canada that culminated in the patriation of the Constitution, the transmission of full constitutional amendment power from the United Kingdom to Canada.

There are actually two copies of the Proclamation: the one signed outside, which suffered water damage (seen above) and became known as the “raindrop” copy, and another that was signed later inside the Parliament Buildings. Originally pristine, the latter was defaced with red paint by a protestor in 1983, and has since become known as the “stained” copy. Both copies of the Proclamation are held by LAC and have been exhibited extensively since 1982. The raindrop copy was recently on display at the Canadian Museum for Human Rights in Winnipeg and was returned to LAC in early September. In 2017 it will be on display at the Library of Parliament in Ottawa.

Copy of the Proclamation of the Constitution Act, 1982 with a large red splotch in the middle.

Stained copy of the Proclamation of the Constitution Act, 1982. (MIKAN 3782551) ©Government of Canada

Tell us about another related item that you would like to add to the exhibition

LAC also has the two pens used to sign the raindrop Proclamation. These were donated in 2000 to the National Archives of Canada by Prime Minister Jean Chrétien, who had a special connection to the pens. He later recalled his humorous interaction with the Queen at the signing:

“I picked up the pen and I start to try to sign and it was not working and I said to myself ‘merde’ and she had a big, big laugh,” he said. “Everybody was asking me what the hell you told her that she had such a spontaneous laugh and I refused to say so for years.” (Source)

You can watch the moment of the signing, and the Queen’s reaction here on CBC (after 7:45 minutes), or here on Radio-Canada (about 0:47 minutes).

Two gold and black pens standing upright in a gold and black pen stand resting on a velvet pad in a wooden box.

Pens used by Queen Elizabeth II and the signatories of the Proclamation of the Constitution Act, 1982. ©Government of Canada. (MIKAN 4105375)

Although the pens were purchased from Birks’ Jewellers, a high-end retailer in Ottawa, apparently little thought was given to the durability of the ink, and over time the popularity of the Proclamations as exhibit items prompted concern about the fading of the signatures due to cumulative exposure to light. A conservative estimate of total exposure time was approximately 4,000 hours of display for each document at varying intensity levels and from different light sources. By 2011, microfade testing on the signature inks done by the Canadian Conservation Institute indicated that the synthetic dyes used in the ink are susceptible to fading, and had almost certainly done so since 1982.

Fading ink has affected several important signatures on historical documents held at LAC, but while many remain on limited circulation, the importance of the Proclamations prompted a project to fabricate a custom storage case and a secure display case that would keep the documents safe from future harm.

It was decided to design and construct two permanent storage cases, one for each copy of the Proclamation. In addition, one secure display case would be made for exhibition purposes (it was anticipated that only one Proclamation would be on display at any one time.) The storage cases can be hermetically sealed to accommodate a low-oxygen environment (which might be implemented in the future to slow fading), and are glazed with UV filters and anti-reflective glass. In addition to security, the display case also incorporates features to limit and monitor light levels. With these new cases, Canadians will be able to see the Proclamations on display for years to come.

Four-legged black case with glass window showing the Proclamation.

Preservation storage case for one copy of the Proclamation. © Government of Canada

Close up of the preservation case displaying a copy of the Proclamation under glass in a black frame.

Close up of the preservation case. © Government of Canada

The case of the Proclamation has also led to a change in LAC’s approach to signature preservation. While many Government of Canada documents are now signed digitally, most of the prestigious documents are still signed in ink. Concern over the permanence of these signatures led the Librarian and Archivist of Canada, Dr. Guy Berthiaume, April 14, 2016 email to advise government departments to use pens with lightfast pigmented ink of high permanence for signing official and prestigious documents. He cited the case of the Proclamation of the Constitution Act, 1982 as a prime example of the risk of fading, and advised that special attention be paid when choosing pens to sign official documents, “particularly documents of national importance destined for our archives…to ensure the documents placed in our care remain in legible condition for future generations.”

Biographies

Michael Smith is the Collection Manager responsible for the textual and cartographic (unbound) collection at Library and Archives Canada. J. Andrew Ross is an archivist in the Government Records Branch of Library and Archives Canada.

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