Supreme Court of Canada
The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the House of Commons and by the Senate on April 23 and 24, 1981.
Questions 1, 2 and 3 of the Manitoba and Newfoundland References submitted for answer and this Court’s answers were as follows:
Question 1 – If the amendments to the Constitution of Canada sought in the ‘Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada’, or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected and if so, in what respect or respects?
Answer – Yes.
Question 2 – Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
Answer – Yes.
The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
Question 3 – Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?
Answer -For the reasons stated in answer to Question 2, as a matter of constitutional convention, ‘yes’. The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
-As a matter of law, ‘no’. Martland and Ritchie JJ. dissenting would answer ‘yes’.
The Question 4 of the Newfoundland Reference submitted for answer and this Court’s answer was as follows:
Question 4 – If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could
(a) the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British North America Act, 1949 (12-13 George VI, c. 22 (UK)), or
(b) section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (UK))
be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?
Answer – As expressed in the reasons of the Newfoundland Court of Appeal, subject to the correction made in the reasons of this Court.
Questions A and B of the Quebec Reference submitted for answer and this Court’s answers were as follows:
Question A – If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada would they affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i) Yes.
(ii) Yes.
Question B-Does the Canadian Constitution empower, whether by statute, convention or otherwise, the Senate and the House of Commons of Canada 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 manner as to affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
(ii)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated: ‘The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.’
Chief Justice and Estey and MacIntyre JJ (dissenting) considered the status of conventions: ‘[A] fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. The observance of constitutional conventions depends upon the acceptance of the obligation of conformance by the actors deemed to be bound thereby. When this consideration is insufficient to compel observance no court may enforce the convention by legal action. The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but will not engage the attention of the courts which are limited to matters of law alone. Courts, however, may recognise the existence of conventions . . ‘
Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ agreed: ‘It is because the sanctions of convention rest with institutions of government other than courts . . or with public opinion and ultimately, with the electorate, that it is generally said that they are political.’
Judges:
Laskin C. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ
Citations:
[1981] 1 SCR 753, 34 Nfld and PEIR 1, 125 DLR (3d) 1, 1981 CanLII 25 (SCC), [1981] 6 WWR 1, 39 NR 1, [1981] SCJ No 58 (QL), 11 Man R (2d) 1, 1 CRR 59, 95 APR 1
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Jurisdiction:
Canada
Cited by:
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Lists of cited by and citing cases may be incomplete.
Constitutional
Updated: 04 May 2022; Ref: scu.575307
