Patriation Reference (1981)
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| Patriation Reference (1981) | |
|---|---|
| Case | Patriation Reference (1981) |
| Court | Supreme Court of Canada |
| Decision date | 1981 |
| Citations | Reference Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753 |
| Judges | Chief Justice Bora Laskin; Justices Ronald Martland, Antonio Lamer, Jean Beetz, Julien Chouinard; Justices Brian Dickson, Bertha Wilson, Antonio Lamer, Jean Beetz |
| Keywords | Constitution Act, 1867; Constitution Act, 1982; convention; federalism; provincial consent |
Patriation Reference (1981) The Patriation Reference (1981) was a landmark advisory opinion of the Supreme Court of Canada concerning the federal Parliament of Canada's ability to adopt a new Canadian Charter of Rights and Freedoms and patriate the Constitution of Canada without formal consent from the Legislative Assembly of Quebec and other provincial legislatures. The decision combined legal analysis with constitutional convention reasoning, influencing the adoption of the Constitution Act, 1982 and shaping later debates involving figures such as Pierre Trudeau, René Lévesque, and institutions like the Privy Council and the British Parliament.
Background
The dispute arose after federal Prime Minister Pierre Trudeau proposed patriation and a new Canadian Charter of Rights and Freedoms in the late 1970s, prompting negotiation with provincial premiers including René Lévesque of Quebec and Bill Davis of Ontario. A request for legal clarity was made to the Supreme Court of Canada by the Government of Canada following failed conferences such as the First Ministers' Conference (1980) and the Kitchen Accord negotiations involving Allan MacEachen and Jean Chrétien. Historical antecedents invoked included the Statute of Westminster 1931, the Constitution Act, 1867, and previous references to the Judicial Committee of the Privy Council and decisions like Reference re Secession of Quebec precursors in constitutional jurisprudence.
Case Overview
The federal government sought an advisory reference to determine whether Parliament could unilaterally request amendment of the British North America Act and introduce a new constitutional text to the United Kingdom Parliament without provincial approval. Petitioners included provincial governments of Manitoba, Saskatchewan, Alberta, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, alongside interveners such as the Canadian Bar Association and trade unions like the Canadian Labour Congress. Legal teams referenced authorities such as Lord Denning, Viscount Sankey, and constitutional theorists linked to Montesquieu and John Locke in submissions about unwritten conventions and legal constraints.
Legal Issues and Questions Referred
The reference posed two central legal questions: whether the Parliament of Canada had the legal authority under the Constitution of Canada and the Statute of Westminster 1931 to unilaterally request enactment by the United Kingdom Parliament; and whether constitutional conventions required substantial provincial consent for patriation. Parties argued about the applicability of legal doctrines found in cases such as Edwards v Canada (Attorney General) and comparisons to the Constitutional Amendment Act frameworks of other federations like Australia and United States Constitution practice. The interplay between written instruments like the British North America Act, 1867 and unwritten constitutional conventions was central to the submissions by counsel for federal and provincial actors including Jean Chrétien and Roy McMurtry.
Supreme Court of Canada Decision
In a split decision, the Supreme Court of Canada held that legally the Parliament of Canada did have the authority to request an amendment unilaterally under existing statutory powers and the residual prerogative of the Crown in Right of the United Kingdom. However, by a separate and significant majority the Court found that a constitutional convention existed obliging the federal and provincial governments to seek a substantial degree of provincial consent before patriation. The judgment, authored by justices including Bora Laskin and with influential opinions by Jean Beetz and Bertha Wilson, distinguished between legal enforceability and political-moral obligations, referencing principles from English authorities like Attorney-General for Canada v. Attorney-General for Ontario-style precedents and continental comparative materials.
Political and Constitutional Impact
Politically, the decision intensified negotiations culminating in the Constitution Act, 1982 and the Canada Act 1982 enacted by the Parliament of the United Kingdom. Federal actors such as Pierre Trudeau and provincial leaders including David Peterson and Brian Mulroney later engaged with the legacy of the ruling during constitutional debates like the Meech Lake Accord and the Charlottetown Accord. The emphasis on conventions influenced subsequent federal-provincial relations and public discourse involving groups like the Bloc Québécois and institutions such as the Supreme Court and the Governor General of Canada.
Subsequent Developments and Legacy
The decision remains a foundational text for Canadian constitutional law taught in faculties such as Osgoode Hall Law School, University of Toronto Faculty of Law, and McGill University Faculty of Law. Later cases, including references and rulings by justices like Beverley McLachlin and Frank Iacobucci, continued to explore the Court's treatment of conventions and the separation between law and politics, informing debates in contexts like Reference re Secession of Quebec and provincial litigations involving Alberta and Saskatchewan. The Patriation Reference (1981) endures as a pivotal moment linking figures such as Pierre Trudeau, institutions like the Parliament of Canada and the United Kingdom Parliament, and events such as the Constitution Act, 1982 in Canada's constitutional evolution.