Reference re Resolution to Amend the Constitution

The federal government's plan to patriate the Constitution unilaterally was lawful as a matter of strict constitutional law but contrary to constitutional convention requiring substantial provincial agreement. The decision led to the November 1981 accord and the Constitution Act 1982.

PM Trudeau proposed to ask the UK Parliament to patriate the Canadian Constitution and add a Charter without unanimous provincial consent. Eight provinces opposed.

(1) As a matter of law, was provincial consent required? (2) As a matter of constitutional convention, was it required?

(1) No legal requirement for provincial consent. (2) Yes — convention required substantial (not necessarily unanimous) provincial consent.

Constitutional conventions are political rules, distinct from constitutional law, that bind the actors in the constitutional process. Courts can recognise their existence even though they cannot enforce them as law. The convention here required substantial provincial consent, not unanimity.

The Court split. The "law" majority found no legal barrier to a federal request to Westminster. The "convention" majority found a binding convention requiring substantial provincial agreement, derived from precedents and reasons (federalism). The dual analysis sets up the legal-conventional distinction that defines Canadian constitutional thinking.

Forced federal-provincial negotiation that produced the Kitchen Accord and Constitution Act 1982 (without Quebec's consent). The legal-conventional distinction is taught in every introduction to Canadian constitutional law.

Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, 1981 CanLII 25 (SCC).

Laskin CJ, Martland J, Ritchie J, Dickson J, Beetz J, Estey J, McIntyre J, Chouinard J, Lamer J