Reference re a Resolution to amend the Constitution, [1981] 1 S.C.R. 753 – 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.
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Under 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 British North America Act, adding to it a domestic amendment formula (permitting Canada to henceforth modify the Constitution itself) and entrenching the 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."[1]
Eight Canadian provinces eventually came to oppose the government's plan. 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."[2] 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 change the B.N.A Act without the consent of some or all of the provinces.
On the federal side, in order to gain support for their plan from the opposition, Trudeau's Liberals agreed to refer all questions on the constitutionality of their proposal to the Supreme Court of Canada.
Manitoba posed three questions to the Supreme Court. The first was whether the proposed amendments to the Constitution would affect the "powers, rights, or privileges granted or secured...to the provinces, their legislatures or governments," and if so in what respects.
Manitoba also asked whether a constitutional convention existed in Canada obliging the federal Parliament to obtain the agreement of the provinces before requesting an amendment to the Constitution that would affect the provinces in the manner specified in the first question.
Finally, Manitoba asked whether it was a constitutional requirement that the agreement of the provinces be obtained in order to amend the Constitution in a way that would affect the "powers, rights, or privileges" of the provinces.
Newfoundland raised the same questions as Manitoba, and added a fourth: could the "Terms of Union" between Newfoundland and Canada be amended "directly or indirectly...without the consent of the Government, Legislature or a majority of the people in the Province of Newfoundland voting in a referendum"?
For its part, Quebec asked two questions. First, it asked whether the proposed amendments to the Constitution would "affect the legislative competence of the provincial legislature." Second, it asked whether the Constitution "empower[ed]...the Senate and the House of Commons to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them."
The Court was unanimous in its affirmative answer to the first question of the Manitoba and Newfoundland References (and the first question asked by Quebec, which the Court took to be equivalent): the proposed changes to the Constitution would indeed affect the "powers, rights, or privileges" of the provinces.
The Court combined the remaining questions into two major issues and addressed those issues in two different rulings. The first ruling dealt with the question of legality: did the federal government have the legal authority to unilaterally seek an amendment to the Constitution, without the consent of the provinces? The second ruling dealt with the question of constitutional conventions: did a convention exist obliging the federal government to seek the consent of the provinces before asking the Parliament of the United Kingdom to modify the Constitution?[3]
Seven judges, a majority, found that the federal government had the legal authority to unilaterally seek the amendment of the Constitution without consent of the provinces.
As to the second matter, the judges unanimously agreed that constitutional conventions exist in Canada, and a majority found that the federal government's plan to seek the amendment of the Constitution without provincial consent did indeed violate such a convention. However, that majority also argued that it was not the role of the courts to enforce constitutional conventions.
The decision was unique at the time as it was the first to be televised live on national television.
The decision has a broader significance to all common law jurisdictions as it is authority for the proposition that a convention cannot, even through long and rigorous usage, "crystallize" into law.