Patriation Reference
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''Reference Re Resolution to amend the Constitution'' – also known as the Patriation Reference – is a historic
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
reference case In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question conce ...
that occurred during negotiations for the
patriation Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the Parliament o ...
of the
Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
. The court affirmed the existence of an unwritten dimension to the constitution and the majority held that by constitutional convention, amendments to the constitution require a substantial degree of provincial consent. However, a differently-constituted majority of the court held that there was no ''legal'' barrier to the federal government seeking a constitutional amendment without any provincial consent.


Political debate over patriating the Constitution

Under the leadership of
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
Pierre Elliot Trudeau Joseph Philippe Pierre Yves Elliott Trudeau ( , ; October 18, 1919 – September 28, 2000), also referred to by his initials PET, was a Canadian lawyer and politician who served as the 15th prime minister of Canada from 1968 to 1979 and ...
, the federal government of Canada sought to
patriate Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British par ...
the constitution. Specifically, the aim of the government was to make a request to the
United Kingdom Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremacy ...
—then the only body with the appropriate legal authority—to amend the
Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
, adding to it a domestic amendment formula (permitting Canada to henceforth modify the constitution itself) and entrenching the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''. "Canada would have its own constitution, with a procedure for making future amendments to it, and with a Charter of Rights."Lorimer, James: "Introduction", ''The Supreme Court Decisions on the Canadian Constitution'', 1981, pp. vii. Initially, the federal government did not have support from the provincial governments. Only Ontario and New Brunswick supported the plan. The eight other Canadian provinces eventually came to support the federal government's plan.


References to the provincial courts of appeal

Governments in Canada can refer questions of law to the courts for advisory opinions, a process called reference cases. Following the impasse between the federal government and the eight provinces which opposed its plans, three provincial governments – Newfoundland, Quebec, and Manitoba – "asked for rulings from their provincial Courts of Appeal on the constitutionality of the federal government's proposed plan". Among their other reasons for opposing the plan to patriate the constitution, these three provinces argued that the federal government did not have the authority to ask the UK Parliament to make fundamental changes to the Constitution of Canada without the consent of all of the provinces. Each reference case was argued separately in the three provincial courts of appeal.


Quebec reference case

Quebec asked two questions: * First, would the proposed amendments to the constitution "affect the legislative competence of the provincial legislatures", or the "status or role of the provincial legislatures or governments within the Canadian Federation"?''Reference re Amendment of the Constitution of Canada'' (1981), 120 D.L.R. (3d) 385 (Que. C.A.) at 385. * Second, did the constitution "empower ... the Senate and the House of Commons to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them", in such a way as to affect the legislative competence of the provincial legislatures, or the status and role of the provincial legislatures and governments within the Canadian Federation? The Quebec Court of Appeal sat a panel of five judges to hear the case: Chief Justice Crête and Justices Owen, Turgeon, Belanger and Bisson. The court unanimously held that the proposed amendments would affect the legislative competence of the provincial legislatures, and the status and role of the provincial legislatures and governments. It therefore answered "Yes" to both parts of the first question. The court divided (4–1) on the second question. The majority (Crête C.J.Q., Owen, Turgeon, and Belanger JJ.) held that the constitution did give the House of Commons and the Senate the power to make unilateral changes to the constitution, by requesting those changes from the British government. They therefore answered "Yes" to both parts of Question 2. Bisson J. dissented. He concluded that the federal government could not make the unilateral changes, and therefore answered "No" to both parts of Question 2.


Manitoba reference case

Manitoba posed three questions to the Manitoba Court of Appeal: * First, would the proposed amendments to the constitution affect the "powers, rights, or privileges granted or secured ... to the provinces, their legislatures or governments", and if so in what respects? * Second, did a constitutional convention exist in Canada obliging the federal Parliament to obtain the agreement of the provinces before requesting an amendment to the constitution that would affect the powers rights or privileges of the provinces? * Third, was there a constitutional requirement that the agreement of the provinces be obtained in order to amend the constitution in a way that would affect the powers, rights, or privileges of the provinces? The court ruled that the federal government could act unilaterally.


Newfoundland reference case

Newfoundland raised the same questions as Manitoba, and added a fourth: * Could the
Terms of Union Term may refer to: *Terminology, or term, a noun or compound word used in a specific context, in particular: **Technical term, part of the specialized vocabulary of a particular field, specifically: ***Scientific terminology, terms used by scienti ...
between Newfoundland and Canada be amended "directly or indirectly ... without the consent of the Government, Legislature or a majority of the people in the Province of Newfoundland voting in a referendum"? The court ruled that the federal government could not act unilaterally.


Appeals to the Supreme Court of Canada

The parties then appealed from the three provincial courts of appeal to the Supreme Court, which heard the three appeals together. The federal government and all ten provinces participated in the appeals.


Answers

The court was unanimous in its affirmative answer to the first question of the Manitoba and Newfoundland References (and the first question asked by Quebec, which the court took to be equivalent): the proposed changes to the constitution would indeed affect the "powers, rights, or privileges" of the provinces. The court combined the remaining questions into two major issues and addressed those issues in two different rulings. The first ruling dealt with the question of legality: did the federal government have the ''legal'' authority to unilaterally seek an amendment to the constitution, without the consent of the provinces? The second ruling dealt with the question of constitutional conventions: did a convention exist obliging the federal government to seek the consent of the provinces before asking the Parliament of the United Kingdom to modify the constitution? Seven judges, a majority, found that the federal government had the legal authority to unilaterally seek the amendment of the constitution without consent of the provinces. As to the second matter, the judges unanimously agreed that constitutional conventions exist in Canada, and a majority found that the federal government's plan to seek the amendment of the constitution without provincial consent did indeed violate such a convention. However, that majority also argued that it was not the role of the courts to enforce constitutional conventions, stating that "they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules."


Aftermath

The decision was unique at the time as it was the first to be televised live on national television. The decision has a broader significance to all
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions as it is authority for the proposition that a convention cannot, even through long and rigorous usage, "crystallize" into
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
. In 2013 historian
Frédéric Bastien Frédéric Bastien is a Canadian author, historian, and journalist, best known for the book ''La Bataille de Londres. Dessous, secrets et coulisses du rapatriement constitutionnel'', whose allegations surrounding the 1982 patriation of Canada's ...
said in a book (, Boréal) that two judges of the Supreme Court, Willard Estey, and Chief Justice Bora Laskin shared confidential information to British and Canadian politicians, as the Supreme Court was hearing the case. He based his assertion on secret British documents recently declassified. According to Bastien, this is a violation of the independence of the judiciary. He concludes that the patriation reference has no legitimacy whatsoever and should be considered void and of no effect.Frédéric Bastien, The Battle of London: Trudeau, Thatcher, and the Fight for Canada's Constitution, Dundurn, 2014, 408p.


References

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External links


Reference re: Resolution to Amend the Constitution

Peter C. Oliver, "Constitutional Conventions in the Canadian Courts"
at UK Constitutional Law Group Canadian constitutional case law Supreme Court of Canada cases 1981 in Canadian case law Supreme Court of Canada reference question cases