Constitution Reference

Constitution Reference (1981) is known as the Resolution to Amend the Constitution. As a prelude to patriation of the Canadian Constitution, the Supreme Court of Canada was asked to rule upon a resolution asking the Queen to place before the British Parliament a bill that included a Charter of Rights and Freedoms, an amending formula and certain amendments to the Constitution. The majority of the Court found that the resolution could be adopted by the federal Houses and the British Parliament without provincial consent. But the majority of the Court also declared that, according to a constitutional convention, the federal resolution should have "substantial" though not necessarily unanimous provincial consent. It also declared that approval by 2 provinces (as was the case) was insufficient. Judged by convention the Resolution was unconstitutional, but because the Court may declare the existence of conventions but may not enforce them, flouting a convention can give rise to a political rather than a juridical remedy.

Author GÉRALD-A. BEAUDOIN