Patriation Reference
| Patriation Reference | |
|---|---|
|
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| Hearing: 28, 29, 30 April and 1 and 4 May 1981 Judgment: 28 September 1981 |
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| Full case name | Re Resolution to amend the Constitution |
| Citations | [1981] 1 SCR 753 |
| Prior history | On appeal from decisions of the Quebec Court of Appeal, the Manitoba Court of Appeal, and the Newfoundland Court of Appeal |
| Holding | |
|
Issue 1: A majority of the Court (7–2) held that as a matter of constitutional law, the federal Parliament could unilaterally request that the British Parliament amend the Canadian Constitution, without consent from the provinces. Issue 2: A majority of the Court (6–3) held that as a matter of constitutional convention, a substantial degree of provincial consent was required for the amendment of the Canadian Constitution. |
|
| Court Membership | |
| Chief Justice | Bora Laskin |
| Puisne Justices | Ronald Martland, Roland Ritchie, Brian Dickson, Jean Beetz, Willard Estey, William McIntyre, Julien Chouinard, Antonio Lamer. |
| Reasons given | |
| Majority | Constitutional Law Issue: Laskin C.J., Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. |
| Majority | Constitutional Convention Issue: Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ. |
| Dissent | Constitutional Law Issue: Martland and Ritchie JJ. |
| Dissent | Constitutional Convention Issue: Laskin C.J., Estey and McIntyre JJ. |
Reference Re Resolution to amend the Constitution – also known as the Patriation Reference – is a historic Supreme Court of Canada reference case that occurred during negotiations for the patriation of the Constitution of Canada.
The Court affirmed the existence of an unwritten dimension to the Constitution and the majority held that by constitutional convention, amendments to the Constitution require a substantial degree of provincial consent. However, a differently-constituted majority of the court held that there was no legal barrier to the federal government seeking a constitutional amendment without any provincial consent.
Under the leadership of Prime Minister Pierre Elliot Trudeau, the federal government of Canada sought to patriate the Constitution. Specifically, the aim of the government was to make a request to the United Kingdom Parliament—then the only body with the appropriate legal authority—to amend the Constitution of Canada, adding to it a domestic amendment formula (permitting Canada to henceforth modify the Constitution itself) and entrenching the Canadian Charter of Rights and Freedoms. "Canada would have its own constitution, with a procedure for making future amendments to it, and with a Charter of Rights."
Initially, the federal government did not have support from the provincial governments. Only Ontario and New Brunswick supported the plan. The eight other Canadian provinces eventually came to oppose the federal government's plan.
Governments in Canada can refer questions of law to the courts for advisory opinions, a process called reference cases. Following the impasse between the federal government and the eight provinces which opposed its plans, three provincial governments — Newfoundland, Quebec, and Manitoba — "asked for rulings from their provincial Courts of Appeal on the constitutionality of the federal government's proposed plan." Among their other reasons for opposing the plan to patriate the Constitution, these three provinces argued that the federal government did not have the authority to ask the UK Parliament to make fundamental changes to the Constitution of Canada without the consent of all of the provinces. Each reference case was argued separately in the three provincial Courts of Appeal.
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