Reference re Resolution to Amend the Constitution
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| Reference re Resolution to Amend the Constitution | |
|---|---|
| Case name | Reference re Resolution to Amend the Constitution |
| Court | Supreme Court of Canada |
| Full name | In the Matter of a Reference by the Governor General in Council |
| Citations | [various reports] |
| Decided | 1981 |
| Judges | [various] |
| Related | Patriation Reference, Canada Act 1982, Constitution Act 1867 |
Reference re Resolution to Amend the Constitution
The Reference re Resolution to Amend the Constitution was a leading Supreme Court of Canada advisory opinion delivered in the context of Canadian constitutional change, engaging federal, provincial, and Crown relationships and the limits of parliamentary authority under the Constitution Act 1867 and the emerging constitutional conventions tied to the Patriation Reference and the Canada Act 1982. The opinion addressed legal and political dimensions involving Prime Ministerial negotiation, provincial premiers, and the role of the Governor General and Queen in constitutional amendment procedures.
Background and Legal Context
The matter arose amid disputes involving Pierre Trudeau, Joe Clark, and other Canadian premiers during debates following the Constitution Act, 1867 and preceding the Canada Act 1982. It intersected with earlier jurisprudence such as the Patriation Reference and invoked concepts tied to the Statute of Westminster 1931 and the role of the Monarchy of Canada. Major actors included the Government of Canada, provincial executives like the Premier of Ontario, the Premier of Quebec, and institutions including the Privy Council for Canada, the House of Commons of Canada, the Senate of Canada, and the Governor General of Canada. International instruments such as the Constitution of the United Kingdom and historical antecedents like the BNA Act informed the legal framework.
Facts and Procedural History
The factual matrix involved a resolution proposed by federal authorities to amend constitutional arrangements, negotiated with provincial premiers at conferences such as the First Ministers' Conference and debated in legislatures like the Legislative Assembly of Ontario and the National Assembly of Quebec. Procedural steps included a reference question posed by the Governor General in Council to the Supreme Court of Canada under the authority of the Constitution Act, 1867 provisions for references, following political episodes connected to the administrations of Lester B. Pearson, John Turner, and other federal leaders. Litigation and submissions featured interveners such as the Canadian Bar Association and interest groups associated with provinces like British Columbia, Alberta, and Nova Scotia.
Issues Presented
Key issues included whether a unilateral resolution of the Parliament of Canada could lawfully amend constitutional provisions affecting provincial powers under the Constitution Act, 1867, whether constitutional conventions required provincial consent, and the role of the Governor General of Canada and the Crown in Right of Canada in assenting to amendments. Related legal questions touched on the interplay between statutory authority from the British North America Act and political principles drawn from precedents like the Statute of Westminster 1931 and practices traced to the Proclamation of 1763 and colonial constitutional developments in Upper Canada and Lower Canada.
Court's Analysis and Reasoning
The Court evaluated statutory texts, precedents such as the Patriation Reference, and international and domestic constitutional practices exemplified by cases involving the Privy Council of the United Kingdom and decisions of the Judicial Committee of the Privy Council. Judges examined the division of powers framework established by the Constitution Act, 1867 and interpreted the roles of actors including the Prime Minister of Canada, provincial premiers, the Lieutenant Governor, and legislative assemblies like the Legislative Assembly of Newfoundland and Labrador. The analysis integrated constitutional doctrine with political realities observed during negotiations at forums like the Western Premiers' Conference and the Council of the Federation.
Decision and Holding
The Court held that amendments affecting substantive provincial powers could not be validly effected solely by a federal parliamentary resolution absent required provincial participation under the constitutional amending formulas that trace to the Constitution Act, 1982 negotiations and the conventions articulated in the Patriation Reference. The decision clarified limits on unilateral action by the Parliament of Canada and emphasized the constitutional status of provincial consent in certain classes of amendments, reflecting jurisprudential roots in the Judicial Committee of the Privy Council era and later Canadian Supreme Court authorities.
Significance and Impact
The opinion influenced the final form of constitutional patriation, contributing legal support for negotiated settlements culminating in the Canada Act 1982 and the Constitution Act, 1982, including the Charter of Rights and Freedoms. It affected political actors such as René Lévesque, Allan Blakeney, and Peter Lougheed by reinforcing provincial bargaining power in constitutional reform. The decision has been cited in matters involving federal-provincial relations, including disputes heard by the Supreme Court of Canada and commentary by scholars at institutions like the University of Toronto Faculty of Law and the McGill University Faculty of Law.
Subsequent Developments and Commentary
Subsequent discourse involved analysis by constitutional scholars including Peter Hogg, Gerry Ferguson, and commentators at think tanks such as the Fraser Institute and the Institute for Research on Public Policy. Later cases and political events, including federal-provincial negotiations over social policy, fiscal arrangements involving the Canada Health Act, and intergovernmental forums like the Council of the Federation, have cited the decision's themes. Ongoing commentary in journals associated with the Canadian Bar Review, the Osgoode Hall Law Journal, and the Alberta Law Review continues to evaluate the decision's influence on constitutional amendment practice and the balance between legal authority and political convention.