Patriation Reference
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| Patriation Reference | |
|---|---|
 | |
| Case name | Reference re Resolution to Amend the Constitution |
| Citation | [1981] 1 S.C.R. 753 |
| Decided | April 28, 1981 |
| Court | Supreme Court of Canada |
| Judges | Chief Justice Bora Laskin; Justices Willard Estey, Jean Beetz, Antonio Lamer, Bertha Wilson, Benoît Boucher, D. I. L. Chouinard |
| Counsel | Arthur A. Porter; Maurice R. Law; Jean Chrétien; Brian Mulroney |
| Keywords | Constitutional law, patriation, federalism, convention, unwritten constitution |
Patriation Reference.
The Patriation Reference was a landmark 1981 constitutional reference to the Supreme Court of Canada concerning whether the Parliament of Canada could unilaterally request the United Kingdom Parliament to enact a proposed constitutional amendment and whether an unwritten constitutional convention required provincial consent. The case arose amid efforts by Prime Minister Pierre Trudeau to patriate the Constitution Act, 1867 and adopt a new Canadian Charter of Rights and Freedoms without formal approval from several provincial premiers, notably René Lévesque of Quebec. The decision produced a split between legal and political answers, influencing subsequent actions by Robert Bourassa, Bill Davis, Joe Clark, and later federal leaders.
Background and Constitutional Context
By 1980–1981, debates over patriation engaged multiple actors and documents including the proposed Victoria Charter precedent, the federal Constitution Act, 1867, and negotiations at the First Ministers' Conference involving premiers such as Peter Lougheed and David Peterson. The federal cabinet under Pierre Trudeau prepared a resolution and a schedule of amendments to be transmitted to the Parliament of the United Kingdom for enactment by the British Parliament if accepted. Provinces including Ontario, British Columbia, Nova Scotia, and Alberta advanced constitutional positions and litigation, while interest groups, academe at institutions like McGill University and University of Toronto, and commentators such as E. K. Williams debated the role of unwritten conventions and the scope of the Judicial Committee of the Privy Council's historical influence. The multiplicity of litigants included the governments of Manitoba, Saskatchewan, New Brunswick, and private interveners like Quebec-based civil society organizations.
The Reference Question and Issues Presented
The Supreme Court of Canada was asked a series of reference questions posed by the Governor General on the advice of the federal cabinet: whether the federal Parliament possessed legal authority under the Constitution Act, 1867 and related statutes to request and accept an amendment to the constitution from the United Kingdom Parliament without provincial consent; whether an unwritten constitutional convention required a substantial degree of provincial consent; and what the effect of any convention would be upon the validity of federal or provincial actions. Parties before the Court included counsel for the federal Crown, provincial governments, and interveners such as constitutional scholars from Queen's University, advocates from Canadian Bar Association, and political leaders like Jean Chrétien advocating federal positions, while premiers including René Lévesque advanced provincialist arguments.
Supreme Court of Canada Decision
In a complex multipart judgment, the Supreme Court of Canada delivered both legal and non-legal determinations. Unanimously, the Court held that Parliament had the legal authority under the Constitution Act, 1867 and the Statute of Westminster 1931 to request and accept an amendment enacted by the United Kingdom Parliament without provincial consent. By contrast, a majority recognized the existence of a constitutional convention that required a substantial degree of provincial consent for major constitutional changes; the Court found that this convention was not legally enforceable by the judiciary. The decision referenced constitutional actors such as the Governor General, historical sources including the Balfour Declaration and practices from the era of the Judicial Committee of the Privy Council, and invoked principles articulated by figures like John A. Macdonald in constitutional evolution. The judgment was authored in separate reasons by Chief Justice Bora Laskin and several puisne justices including Jean Beetz and Bora Laskin's colleagues, with notable concurrences and dissents illustrating tensions among federalists and provincialists.
Political and Legislative Aftermath
Politically, the decision catalyzed renewed intergovernmental negotiations culminating in the Night of the Long Knives-era accusations and the later federal-provincial agreement at a final First Ministers' Conference that produced the Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms and an amending formula. Federal actors such as Pierre Trudeau and negotiators including Jean Chrétien and Roy McMurtry engaged with premiers like Bill Davis, Robert Bourassa, and Joe Clark to secure sufficient provincial support. Quebec's refusal to consent remained unresolved, prompting debates in the House of Commons and the Senate of Canada and later initiatives like the Meech Lake Accord and the Charlottetown Accord seeking to address outstanding provincial concerns.
Legal Significance and Legacy
The Patriation Reference established key precedents about the interplay of law and constitutional convention in Canada, delimiting judicial review of unwritten norms while affirming parliamentary supremacy within the written constitution. It influenced subsequent jurisprudence in cases involving unwritten constitutional principles, such as decisions from the Supreme Court of Canada on federalism and rights, and informed academic commentary from scholars at Osgoode Hall Law School, University of British Columbia, and Dalhousie University. Politically, the ruling shaped constitutional reform efforts, provincial-federal relations, and debates about Quebec's status in the federation, with long-term effects seen in accords like Meech Lake Accord and constitutional debates extending into the tenure of leaders such as Brian Mulroney and Jean Chrétien.
Category:Canadian constitutional case law