COMMENTS
COMMENTAIRES
The Supreme Court of Canada
and Basic Constitutional Amendment
An Assessment of Reference Re Amendment
of the Constitution of Canada (Nos 1, 2 and 3)
W.R. Lederman*
the federal government and
Since 28 September 1981, events have moved with considerable speed
toward the resolution of Canada’s urgent problems of major constitutional
reform. On that date the nine justices of the Supreme Court of Canada
rendered their landmark decision on the nature of the amending process
necessary
to accomplish fundamental constitutional changes directly
affecting the essentials of the Canadian federal union founded in 1867. The
decision had been preceded by many months of political and legal deadlock
in the country on the issues, with eight provincial governments arrayed
against
remaining provincial
governments. In the winter of 1980-8 1, the controversy was taken to three
provincial Courts of Appeal, those of Manitoba, Newfoundland and
Qu6bec. When these courts had spoken, with mixed results,I their respective
decisions were in effect consolidated for purposes of a single appeal to the
Supreme Court of Canada. Argument was heard there at the end of April
1981, and the decision of the Court, with reasons, was given about five
months later, on September 28.2 The issues were as complex as they were
basic, so the Supreme Court certainly moved with quite remarkable speed in
the circumstances, as, indeed, the provincial Courts of Appeal had done
earlier in the year.
two
the
It soon became apparent after September 28, that, while the Supreme
Court had not by any means settled all the constitutional issues confronting
Canadians, it had nevertheless moved us much closer to the resolution of our
difficulties by settling some important questions of method concerning the
right way of doing things in the realm of basic constitutional change, as only
O.C., Q.C., F.R.S.C., of the Faculty of Law, Queen’s University.
‘Reference Re Amendment of the Constitution of Canada (1981) 117 D.L.R. (3d) I
(Man. C.A.); Reference, etc. (No. 2)(1981) 118 D.L.R. (3d) I (Nfld C.A.); Reference, etc.
(No. 3)(1981) 120 D.L.R. (3d) 385 (Qu6. C.A.).
2 Reference Re Amendment of the Constitution of Canada (Nos 1, 2 and 3) (1981) 125
D.L.R. I (S.C.C.).
Mc GILL LAW JOURNAL
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the Court of final authority for Canada could have done.3 Look at what has
happened since the judgment. On November 5, at a Federal-Provincial
Conference, nine provincial governments and the federal government agreed
on a domestic amending formula for basic change that would, if
implemented, accomplish patriation of the Canadian constitution. They also
agreed on a wide-ranging Canadian Charter of Rights and Freedoms to be
entrenched in the constitution as part of the patriation process. Certainly,
these would be fundamental changes to the federal union. Sadly, however, it
must be added that the provincial government of Qu6bec was not a party to
this consensus. As a political fact this is a matter of general regret and
continuing anxiety among Canadians, including Qu6becers. Nevertheless,
the near unanimity of the political consensus was quite remarkable and was
deemed constitutionally sufficient to enable the Parliament of Canada to go
ahead. It seems clear that all governments in Canada except for that of
Qu6bec construed
the critical Supreme Court majority judgments of
September 28 as having been to this effect.
to Westminster
After making a few changes in the Charter, with the Quebec government
maintaining its general dissent, all-party support for the Joint Address to the
Queen was obtained in both Houses of the Parliament of Canada, and the
Address was sent
in early December. The British
parliamentarians also regretted the absence of the Qu6bec government from
the otherwise complete Canadian consensus, but, in their turn, they took the
view that this was not a constitutional
impediment for the British
Parliament. In due course, the legislation requested in the Joint Address
from Canada was passed without change by both Houses of the British
Parliament and became law on receiving Royal assent on March 29. Thus
the British Parliament has discharged its traditional function in this respect
for the last time. The legislation itself provided that it was to come into force
on a day to be fixed by a proclamation issued by the Queen or the Governor-
General under the Great Seal of Canada.4 This was done by the Queen as
Queen of Canada in Ottawa on 17 April 1982, with effect on that day.
Neverthless, the Qu6bec government continues its objections, and it had
earlier gone back to the Qu6bec Court of Appeal claiming that the lack of
Qu6bec government consent would invalidate these changes, if not as a
matter of constitutional law, then at least as a matter of constitutional
convention. However, on 7 April 1982, the Qu6bec Court of Appeal gave
judgment unanimously rejecting this claim to a veto power. 5 Apparently the
Qu6bec government intends to appeal against this verdict to the Supreme
3[ 1974] A.C. 127 (P.C.). Seealso Lederman, Amendment and Patriation (1981) 19 Alta L.
Rev. 372.
4 Canada Act, 1982, Schedule B, The Constitution Act, 1982, s. 58.
5 A.-G. Qujbec v. A.-G. Canada, C.A. (Montreal. 500-09-001648-81), 7 April 1982.
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COMMENTS
Court of Canada, which it has the right to do. As a constitutional scholar, I
very much doubt that the Supreme Court of Canada would differ from the
Qu6bec Court of Appeal, but of course I do not presume to speak for the
Supreme Court of Canada.
In any event, the decision of the Supreme Court of Canada rendered on
28 September 1981 has had a great and continuing effect on the subsequent
developments that have just been recounted. So it is proper for a scholar to
attempt a short critical analysis of the reasons of the judges to explain this
influence. Because the reasons referred to occupy well over 100 pages in the
law reports, composing a short commentary is indeed a formidable task. But
the nine judges do fall into four groups according to the positions taken by
them on the issues, so that if one keeps to the main thrust and emphasis of
these four positions, perhaps reasonable accuracy may be combined with
some brevity. In any event, this is what the writer will attempt to do.
In the first place, let us emphasize the magnitude of the change in the
situation that was achieved in November 1981, in very considerable measure
as a result of the Supreme Court decision of September 28. Both the federal
government and seven of the eight provincial governments previously
opposing it made major and important concessions to one another, and thus
an accord was reached, as described earlier, on a new plan for basic
constitutional change which carried the support of nine provinces and the
federal government.
The constitutional issues to which the Supreme Court of Canada
addressed itself arose out of the historical fact that, while the B.N.A. Act of
1867, an Act of the British Parliament, provided Canada with a federal
constitution, it did not provide any domestic process for amending the basics
of that constitution in Canada by some adequate measure of domestic
agreement between the provinces and the central government. Accordingly,
it has been necessary during the past 114 years to obtain such amendments to
the B.N.A. Act by an appropriate request to the Parliament of Britain from
Canada. Over the years, as Canada grew to independent nationhood, certain
principles or customs developed
informally concerning what was an
appropriate request. The two principles involved in the issues before the
Court were as follows:
(1) The British Parliament would not enact any basic amendments of
the Canadian constitution except at the request of both Houses of the
Parliament of Canada; and
(2) the Canadian Parliament would “not request an amendment
directly affecting federal-provincial relationships without prior consul-
tation and agreement with the provinces.” 6
6 G. Favreau, The Amendment of ihe Constitution of Canada (1965), 15.
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Accordingly, the questions for determination by the Court concerned
primarily the constitutional status (if any) of the second customary rule
just stated. Was it a law of the constitution binding on all parties, or if not,
was it at least a convention of the constitution having objective obligatory
character? If it was neither of these, then it was a mere precept of desirable
political behavior in some circumstances, having no objective binding
force for the governments concerned. The government of Prime Minister
Trudeau had taken this latter position, and decided they were free to go
ahead unilaterally, without provincial agreement, to request from the
British Parliament in Westminster the basic constitutional changes they
proposed. In early October 1980, with this intention, they introduced the
necessary resolution for an address to the Queen in the Parliament of
Canada. For several months prior to this they had tried without success to
obtain provincial agreement.
Political objection to this unilateralism developed quickly in Parlia-
ment, primarily on the part of the Progressive Conservative Party.
Furthermore, six dissenting provinces took the federal government to
court as described earlier, alleging that the unilateral procedure being
followed was unconstitutional
in the legal sense, or at least in the
conventional sense. By the time the three provincial court judgments
reached the Supreme Court of Canada on appeal, eight provinces were
supporting this position against the federal government. Also, by this
time, largely due to the efforts of the Progressive Conservatives, the constitu-
tional resolution had been tabled in Parliament to await the decision of the
Supreme Court, and the federal government had agreed to abide by the
decision when it came. It came on 28 September 1981.
Let us turn then to the positions taken by thejudges and their reasons
for them. The problems they had to deal with are both basic and complex,
so it is not surprising that two majority positions and two minority
positions emerged, in the form of joint opinions by the various judges in
agreement on each of the four positions. I will hereafter speak of the
majority and minority judgments number I (on strict constitutional law),
seven judges to two; and of the majority and minority judgments number II
(on established constitutional conventions), six judges to three. Majority
Judgment I was given by Chief Justice Laskin and Justices Dickson, Beetz,
Estey, McIntyre, Chouinard and Lamer, 7 with Justices Martland and
Ritchie dissenting in Minority Judgment 1.8 Majority Judgment II was given
by Justices Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer, 9 with
7 Supra, note 2, 12.
8 Ibid., 49.
9 IbiM., 79.
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COMMENTAIRES
Chief Justice Laskin and Justices Estey and McIntyre dissenting in Minority
Judgment 11.10
The judges forming Majority I ruled that, as a matter of law, there was
no requirement for any provincial consent to be obtained before the
Parliament of Canada could properly request amendments directly
affecting federal-provincial relationships from the British Parliament. A
unilateral request to Westminster by the government and Parliament of
Canada was legal, they said. Justices Martland and Ritchie, forming
Minority I, dissented, taking the view that, in these circumstances, the
strict law of the constitution required provincial consent, so that the
unilateral address planned was illegal. They left open the question
whether, in their opinion, the consent of all the provinces had to be
obtained, or whether some lesser but still substantial measure of
provincial consent would, as a matter of law, suffice.
The judges forming Majority II ruled that, as a matter of established
constitutional convention, apart from law, the Canadian constitution had
come to require that the Canadian Parliament will not request an
amendment directly affecting federal-provincial relationships without prior
consultation and agreement with the provinces. Moreover, they ruled that a
substantial measure of provincial consent would suffice to satisfy the
convention, thus holding that unanimous consent of all the provinces was
not required by the terms of the convention. Chief Justice Laskin, and
II, dissented. They
Justices Estey and McIntyre, forming Minority
concluded that an established convention had not developed requiring
provincial consent in the circumstances, so that conventionally as well as
legally, the planned unilateralism of the federal government and the
Parliament of Canada was constitutional.
It will have been noticed that four of the judges are common to Majority
I on law and Majority II on convention. They are Justices Dickson, Beetz,
Chouinard and Lamer. If one analyzes carefully what accounts for this, one
can largely explain not only the different positions taken by the two majority
groups, but also those taken by the two minority groups. My thesis is that the
judges in each of the four groups were responding to three primary
constitutional questions which had to be faced one way or another for them
to dispose of the case. Their responses differed in critical ways; nevertheless,
the majority view did emerge that enabled the Canadian political actors to
make the remarkable progress toward solution described earlier, the accord
of November and December 1981.
The three primary themes or questions I have in mind concerning first
things constitutional are as follows:
‘Ibid.. 107.
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(1) Given that the constitution is a combination of law and conventions,
what is the nature of law itself, what is the nature of convention itself, what is
the relation between the two and from what sources do they respectively
originate?
(2) Given that the constitution is a federal constitution of some sort,
what kind of a federal constitution is it? In other words, what is the nature of
Canadian federalism?
(3) What is the proper function of the traditional courts, especially of the
Supreme Court of Canada, as the final guardians of compliance with the
constitution, as a matter of law or convention or both? In other words, what
basic constitutional issues are justiciable? What is the extent of the power of
judicial review?
Let us now examine how the four groups ofjudges-
the two majorities
and the two minorities – divided and combined on these questions.
In Majority Judgment I, the seven judges took a rather narrowly
positivist and historically static view of the nature of Canadian constitu-
tional law, at least at the primary level in question, that of the basic
amending process. They assert that legal rules at this level must be directly
expressed in formal authoritative documentary sources such as relevant
British statutes, orjudicial decisions either British or Canadian.” They hold
that no such source can be found giving a legal amending process for
Canada that requires a federal-type measure of provincial consent, or any
provincial consent at all, in relation to the legal power of the Parliament of
Canada to ask what it pleases of the British Parliament by way of joint
address. Furthermore, they say there is no legal requirement that limits the
old imperial supremacy of the British Parliament to do whatsoever it pleases
about requested amendments from Canada. 2
I have characterized this view of law as narrowly positivist because it
treats certain authoritative formal sources of law as unique and exclusive of
the operation of any other source of law. I have characterized
it as
historically static because Canadian federalism and independence are both
undoubted and long-standing historical facts in the modern world; yet
neither fact is accommodated in this conception of the strict law of the
constitution. This seems to take us back not just to 1867 but to 1866. I
respectfully submit that there is something wrong with a conception of basic
constitutional law that is so unreal. Nevertheless, the result of Majority
Judgment I is that, as a matter of law, we must have one last British statute
that gives us a domestic constitutional amending process of a suitable federal
” Supra, note 2, 29.
12 Ibid., 47.
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COMMENTS
type, before we have such a legal Canadian amending process at all. Until
then, they say, there is simply a large gap in our constitutional law. It is just
drastically incomplete.
Finally, we should now notice that this strict and narrow definition of law
permitted all seven judges in Majority I to avoid issues concerning the nature
of Canadian federalism. It is only because they agreed on a narrow definition
of law that they could join in Majority Judgment I, which was strictly
confined to the legal issue. As we shall see, Chief Justice Laskin and Justices
Estey and McIntyre on the one hand (Minority Judgment II), and Justices
Dickson, Beetz, Chouinard and Lamer on the other hand (Majority
Judgment II), have quite different conceptions of the nature of Canadian
federalism. The minute that matter is raised, the groups of three and four just
mentioned part company.
Before pursuing that point, we should look at the significance of
Minority Judgment I –
the dissent on strict law of Justices Martland and
Ritchie. In Edwards v. A.- G. Canada, decided in 1930,13 Lord Sankey said:
“The British North America Act planted in Canada a living tree capable of
growth and expansion”. Justices Martland and Ritchie took this broader
sociological and organic view of Canadian constitutional law as it relates to
basic amendment processes. They considered constitutional law to have
been growing to completeness in the federal sense, and to independence
from Britain, in the 114 years since Confederation. They inferred a
requirement for provincial consent in a typically federal amending process
as a matter of law, by necessary implication from formal legal sources –
the
B.N.A. Act itself, the Statute of Westminster, 1931, and a number of
important judicial decisions in the Judicial Committee of the Privy Council
and the Supreme Court of Canada distributed through the whole period
since Confederation. They considered the formal sources in the light of the
full facts of Canadian political and constitutional history, including the
political facts about how amendments were secured from the British
Parliament throughout the period.’ 4 This use of the full historical context
for the formal sources in aid of legal inferences manifests a very different
conception of what basic constitutional law is and where it comes from than
what we found in the majority judgment on the legal issue. The legal result
reached by Justices Martland and Ritchie described earlier is realistic, but it
is a minority judgment, and thus, however great its theoretical validity, it did
not directly influence subsequent events.
At this point, however, we find that Justices Dickson, Beetz, Chouinard
and Lamer recognized that the narrow conception of law in which they had
13[1930] A.C. 124, 136 (P.C.).
14 Supra, note 2, 73, 78-9.
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concurred when they were part of Majority I was so incomplete that it had
nothing at all to say about a basic amending process appropriate for
Canadian federalism. They were nonetheless willing to complete the
constitution as a federal constitution in this respect by rules arising from
constitutional conventions that had been established over the years since
Confederation. They found that there was indeed a conventional rule
requiring a substantial measure of provincial consent, as outlined earlier, for
basic amendments affecting the federal union. Moreover, they held that
such constitutional conventions could be
identified, defined and
authoritatively declared as obligatory rules by the Court, even though they
were not legal rules and the Court could do nothing to enforce them if there
were not willing compliance by the political actors concerned. The tests they
used to identify and define the relevant convention arising from the custom
and usage of the official political actors, over the 114 years since
Confederation, were those stated by Sir Ivor Jennings:
We have to ask ourselves three questions: first, what are the precedents; secondly, did
the actors in the precedents believe that they were bound by a rule; and thirdly, is there a
reason for the rule? A single precedent with a good reason may be enough to establish
the rule. A whole string of precedents without such a reason will be of no avail, unless it
is perfectly certain that the persons concerned regarded them as bound by it. 15
We can see that Justices Dickson, Beetz, Chouinard and Lamer arrived,
as a matter of convention, at virtually the same conclusion respecting the
present basic amending process reached by Justices Martland and Ritchie as
a matter of law. Moreover, this was done in each case by virtue of the same
reading of the obligatory significance of the historical evidence. It was
natural and proper then that Justices Martland and Ritchie should join with
the other four judges just named to give Majority Judgment II on
convention –
the judgment that really counted, as we shall see later. For
Justices Martland and Ritchie, a rose by any other name still smelled as
sweet. Finally, it should be emphasized that the unifying factor for the six
judges in Majority II was notjust a common view of the nature and function
of established constitutional conventions, it was also a common view of the
nature of Canadian federalism. All six judges in Majority II conceived the
total Canadian constitution (by virtue of convention) to be essentially in
harmony with the classic federal model in what was required by way of
provincial consents for basic amendments. According to the classic model,
federalism is an equal partnership between the provincial governments and
legislatures on the one hand and the government and Parliament of Canada
on the other. Those who read Canadian constitutional history and
jurisprudence as manifesting classic, balanced federalism will naturally infer
that there is, here and now, a requirement for at least substantial provincial
15 I. Jennings, The Law and the Constittion, 5th ed. (1959), 136.
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COMMENTAIRES
consent, along with that of the Parliament of Canada, for amendments
directly affecting the federal union. As we have seen, for Justices Martland
and Ritchie this inference was both legal and conventional, whereas for
Justices Dickson, Beetz, Chouinard and Lamer it was conventional only,
albeit very real at that level. In terms of the Jennings’s tests, the classic
character of Canadian federalism was the reason for the convention
requiring provincial consent.
The contrasting view of the nature of Canadian federalism is found at
full strength only in the dissenting opinion on convention of Chief Justice
Laskin and Justices Estey and McIntyre in Minority Judgment II. As they
read Canadian constitutional history and jurisprudence, these sources
manifest only a partial and incomplete federalism at the level of basic
amendments directly affecting the federal union of the country, whether one
is talking of law or convention. Indeed, they deny that there is any one
“classic” model for federalism in political science or constitutional
jurisprudence. In any event, they conclude that the Canadian constitution is
only partially federal and has included from the beginning some elements of
a unitary state that give certain overriding powers to the Parliament of
Canada. They conclude that these are inconsistent with a finding, legal or
conventional, that Canada is, or was intended to be, a classic balanced
partnership federalism, at least where the basic amending process is
concerned, and in certain other respects as well. What are these overriding
formal legal powers that give the Parliament of Canada superior status?
Minority II emphasizes the potentially extensive overriding character of the
legislative power of the Parliament of Canada under the “Peace, Order and
Good Government” clause 6 of the B.N.A. Act, the paramountcy of that
Parliament in concurrent legislative fields, the power of that Parliament to
take over regulation of provincial works by declaring them to be works for
the general advantage of Canada, 7 and the power of the federal cabinet to
disallow provincial legislation by Order-in-Council. 8
16 The British North America Act. 1867, 30 & 31 Vict., c. 3, s. 91 (U.K.).
17 The British North America Act. 1867, 30 & 31 Vict., c. 3, s. 92.10 (U.K,).
8 Ibi., 125-6. The judges forming Minority 1I said: “The B.N.A. Act has not created a
perfect or ideal federal State. Its provisions have accorded a measure of paramountcy to the
federal Parliament. Certainly this has been done in a more marked degree in Canada than in
many other federal States. For example, one need only look to the power of reservation and
disallowance of provincial enactments; the power to declare works in a Province to be for the
benefit of all Canada and to place them under federal regulatory control; the whide powers
to legislate generally for the peace, order and good government of Canada as a whole; the
power to enact the criminal law of the entire country; the power to create and admit
Provinces out of existing territories and, as well, the paramountcy accorded federal
legislation. It is this special nature of Canadian federalism which deprives the federalism
argument described above of its force. This is particularly true when it involves the final
settlement of Canadian constitutional affairs with an external government, the federal
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It is no doubt clear to readers by now that I favour the classic version of
the nature of Canadian federalism, though no constitution is absolutely pure
in compliance with a given model.
I agree in principle with both Minority Judgment I and Majority
Judgment II, and this has been my position for many years. Nevertheless, I
am bound to admit that the rather centralized and partial version of the
nature of Canadian federalism given in Minority Judgment II has been until
quite recently the prevailing version among the professors of constitutional
law and political science of English Canada. By contrast, the prevailing view
among these groups in French Canada has been and still is the classic
version. They see the special central powers pointed to in Minority
Judgment II as anomalies. And it should be added that the courts have
definitely set close limits to the potentially sweeping character of the “Peace,
Order and Good Government” clause.’ 9
In any event, to come back to thejudgments of 28 September 1981, 1 am
suggesting that the differing beliefs of the respective judges about the nature
of Canadian federalism had a significant steering effect on the results they
came to in three of the four groups into which they formed themselves –
Minority I (law), Majority II (convention) and Minority II (convention). I
admit that to attempt to detect a “steering effect” is something of a chicken
and egg problem. But, after all, the three groups were reading the same
constitutional history and court judgments –
so how else does one explain
that one group of judges went one way and the other two groups the
opposite way on the issue of a present constitutional requirement for
provincial consents to basic amendments? How else does one explain that
the same fact of history or jurisprudence is the “usual thing” to one person,
but “anomalous” to another person? To carry the point a little further, what
accumulation and selection of historical facts gives one the dominant type or
pattern for Canadian federalism as a matter of evidence?20
authority being the sole conduit for communication between Canada and the Sovereign and
Canada alone having the power to deal in external matters. We therefore reject the
argument that the preservation of the principles of Canadian Federalism requires the
recognition of the convention asserted before us.”
19 Re Anti-Inflation Act [1976] 2 S.C.R. 373.
20 Between 30 January 1981 and 18 January 1982, the all-party Foreign Affairs Com-
mittee of the British House of Commons (the Kershaw Committee) published three
unanimous reports on the British North America Acts and the constitutional position in
relation to their amendment by the British Parliament. As a matter of constitutional
convention binding the British Parliament, the Committee, guided by tle research assistance
and testimony of outstanding British constitutional experts, found in effect that Canada
followed the classic federal model. Hence they said that the British Parliament should
respond only to “the clearly expressed wishes of Canada as a federally structured whole”. See
Foreign Affairs Committee: House of Commons (U.K.). The British North America Acts:
The Role of Parliament, First Report, 30 January 1981; Second Report, 15 April 1981;
Third Report, 18 January 1982.
1982)
COMMENTS
We come now to the third basic question or theme concerning which all
the judges recognized that a response was necessary. What is the proper
function and authority of the traditional superior courts, especially the
Supreme Court of Canada, as guardians of compliance with
the
constitution? Whether basic constitutional law is defined narrowly (as by
Majority I), or more broadly (as by Minority I), all the judges in the case
presumably agreed that the Supreme Court had final authority to declare,
define and enforce the law, according to whatever a majority of the Court
found to be the law in any given case. Since 1867, to go no further back, it
has been accepted that the superior courts do have the legal power ofjudicial
review respecting the legal limitations on the powers of provincial
legislatures and the Parliament of Canada that obtain, for example, by
virtue of the B.N.A. Act. But there is no specific text that literally spells this
out in any formal, fundamental legal document. I believe the power to be
legal, and no doubt it could be implied from formal sources if full contextual
historical interpretation were used, as it was by Justices Martland and
Ritchie in Minority Judgment I. Or one can say that custom and usage for
such judicial review have so long been consistently and widely accepted that
they have crystallized into law. I suggest that these two ways of putting it
come to the same thing. Either way, something legal has been added to what
could be derived only by direct literal interpretation of what is contained in
formal documentary cources.
Be that as it may, the open differences between the judges on the power
of judicial review relate to the justiciability of established conventions,
accepting the sharp dichotomy between law as narrowly defined by Majority
I and convention as defined by Majority II. Chief Justice Laskin and
Justices Estey and McIntyre doubted that established conventions were
justiciable at all, and they only addressed themselves to the possible
existence and terms of a relevant convention because they were, so to speak,
pressured into doing so by the other six in Majority II, who held that
conventional issues were justiciable, except for judicial enforcement
measures. The six judges of Majority II found that the Court had both the
power and the duty to look for relevant constitutional conventions, and if
they found one to be established by the Jenning’s tests, to declare it
authoritatively and to define its terms. They admitted they could do nothing
to enforce compliance if the political actors would not willingly comply;
nevertheless, this goes a long way beyond the preferred position of Chief
Justice Laskin and Justices Estey and McIntyre that conventions were not
justiciable at all. So, by a majority of six to three, we have a precedent that
serious allegations concerning established constitutional conventions are
justiciable to the extent explained.
As a final observation on such justiciability, I suggest that the non-
enforceability of conventions by the Court is of only marginal importance,
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[Vol. 27
at least in nearly all situations. In nearly all cases, the power authoritatively
to identify and declare the terms of established constitutional conventions
will be enough to attract voluntary compliance from the political actors. At
the end of the day, if the prestige of the Supreme Court of Canada and the
legitimacy of its power of judicial review in our federal system are widely
accepted by the official political actors and by the people at large, thejudicial
declaration will induce willing compliance. If there is no such official and
general acceptance of the role of the Court, what effective enforcement
measures would be possible anyway? Fortunately, it appears that we do
have this kind of acceptance in Canada. Is this not what explains in large
part the political accord of November and early December 1981?
More specifically, I am asserting that it was the terms of Majority
Judgment II by Justices Martland, Ritchie, Dickson, Beetz, Chouinard and
Lamer that impelled the Canadian political actors to accomplish the political
agreement on constitutional issues that they reached in November and early
December of 1981. In conclusion, we should now look in more detail at what
these judges said.
A summary of their position can be given in six points:
(1) The sum total of rules and principles making up the constitution of
Canada fall into two parts: “Constitutional conventions plus constitutional
law equal the total constitution of the country.”
(2) Constitutional law consists of statutes (including relevant British
statutes such as the B.N.A. Act) and common law rules. The parentage of
the latter is that they have been originated by the courts as judge-made law.
The courts decide issues arising in these areas and make appropriate
enforcing orders.
(3) Constitutional conventions are rules or principles of the consti-
tution made by custom, usage and precedent developed by important
political leaders in office and accepted by the electorate over the years, for
the control of the conduct of the public affairs of the country. Such
conventions have never been enforced by the courts and cannot be.
Nevertheless, in appropriate cases the courts may authoritatively declare
that a particular convention has been established and likewise declare what
its terms are. This reference case, the group of six say, is one of those
appropriate occasions.
(4) Established conventions are full-fledged obligatory rules of the
constitution. They are binding and ought to be obeyed by all concerned,
even though there are no specific judicial processes available to enforce
them.
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COMMENTAIRES
(5) Conventional constitutional rules are frequently of very great impor-
tance. Often their purpose is to limit the use of legal powers and discretions
which are very extensive. In spite of the letter of the law, conventions
prescribe that such legal powers should be used only in a certain limited
manner, if at all. To a vital degree, democracy itself in our country rests on
conventions, in this case the conventions of responsible government.
For example, in law, the Queen is the all-powerful executive head of
state. By convention she can only exercise those powers according to the
advice of ministers who have the confidence of the majority of the members
of the popularly elected house of the parliamentary body concerned.
Likewise, in the vital realm of basic constitutional amendment, Canadian
federalism itself rests upon, and is defined by, the convention for provincial
consents explained earlier, in addition to the consent of the Parliament of
Canada.
(6) Legally, the Parliament of Canada can pass any resolution it pleases
on any subject whatever and address it to any person in the world. But as a
matter of constitutional convention, it would clearly be unconstitutional for
it to pass a joint address intended to procure amendments from the British
Parliament “directly affecting federal-provincial relationships without prior
consultation and agreement with the provinces.”
The six judges in Majority II dealt also with the quantification of
provincial consent called for by the terms of the convention just quoted.
They said the unanimous consent of all the provinces was not required, and
then continued as follows:
It would not be appropriate for the Court to devise in the abstract a specific formula
which would indicate in positive terms what measure of provincial agreement is
required for the convention to be complied with. Conventions by their nature develop
in the political field and it will be for the political actors, not this Court, to determine the
degree of provincial consent required.
It is sufficient for the Court to decide that at least a substantial measure ofprovincial
consent is required and to decide further whether the situation before the Court meets
with this requirement. The situation is one where Ontario and New Brunswick agree
with the proposed amendments, whereas the eight other provinces oppose it. By no
conceivable standard could this situation be thought to pass muster. It clearly does not
disclose a sufficient measure of provincial agreement. 2′
This substitution of a substantial measure of consent as the requirement,
rather than unanimous provincial consent, was an essential element of the
decision of Majority II impelling the political actors to reach the federal-
provincial political accord of November and December 1981.22
21 Supra, note 2, 103 [emphasis added].
22 Substantial consent rather than unanimity had not been argued before the provincial
Courts of Appeal. However, it was carefully put to the Supreme Court of Canada in late
April 198 1, by counsel for the province of Saskachewan in both written and oral argument.
McGILL LAW JOURNAL
[Vol. 27
to occur
they will continue
Finally, by way of overview, I wish to say two things. First, fundamental
theoretical issues about the proper definition of law have been around for a
long time, and
in our constitutional
jurisprudence. I do not think the sharp dichtomy between law, narrowly
defined, and established conventions -a dichtomy favoured by seven of the
nine judges in the case under discussion- will last very long. Its historical
legitimacy is doubtful, and even the seven judges of Majority I admit that
custom and usage do make international law. Nevertheless, it must be
conceded that this sharp dichotomy is standard English constitutional
doctrine. Secondly, the major contrasting views of the nature of Canadian
federalism discussed earlier have been with us for 114 years, and the tension
between them will continue as an influence, one way or another, in our
constitutional jurisprudence. There is much more to be said on both these
matters, but it cannot be said here.
What should be said here is a word or two in praise of the Supreme
Court of Canada. All nine judges identified the three fundamental theo-
retical issues that had to be faced as a matter of constitutional jurisprudence.
They differed in critical ways on the right answers concerning those issues,
but when they discovered that this was so, they grouped themselves very
effectively into two majorities and two minorities. The resulting four
judgments explored the basic themes thoroughly from all angles with great
professional skill and distinguished scholarship. Choices had to be made and
they were made. The judges faced the music, so to speak. Majority
Judgment II on convention emerged, and had the effective result described
earlier. I think authoritative judicial review is alive and well and living in
Canada.
The province of Saskatchewan had intervened against
the Trudeau government’s
unilateralism only at the Supreme Court level. No other province made this argument.
It may well be, however, that thejudges of Majority II already had the point in mind. The
Foreigh Affairs Committee of the British House of Commons (the Kershaw Committee), in
their First Report published on 30 January 198 1, had concluded, for purposes of advising the
British Parliament of its constitutional position, that some substantial measure of provincial
consent rather than unanimity was what constitutional convention required, at least so far as
the British Parliament was concerned. This Report and the two that soon followed are very
distinguished documents, fully researched and thoroughly argued. Obviously the Reports
owe much to the guidance of leading British experts in constitutional matters who either were
part of the staff of the Committee or gave testimony to it. I do not believe that the First Report
was formally brought to the attention of the Supreme Court of Canada by counsel, but I
strongly suspect that the judges were familiar with it anyway. See supra, note 20.
