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Minister) “
˜avoided the raising of a very critical constitutional question, namely, whether or not
in the amending of the British North America Act it is absolutely necessary to secure
the consent of all the Provinces, or whether the consent of a certain number of
Provinces would of itself be sufficient.™ (Canadian Commons Debates, 1940 (25 June),
pp 1117“18.)
It is clear from this remark that the Canadian Government accepted that in the case of
such amendments convention made it ˜absolutely necessary™ that the consent of at least
some Provinces was obtained. In principle it would seem right that the consent of all
174 British Government and the Constitution

Provinces suffering any diminution of their legislative powers should be obtained, and this
is corroborated by the fact that unanimous consent was obtained for the amendments of
1951, 1960 and 1964.
14. In addition, there is the very significant case of non-amendment represented by the
Statute of Westminster 1931. This would have gravely affected Provincial legislative inde-
pendence, as already pointed out, had not section 7 been inserted at the instance of the
Provinces. In this case not only the Canadian Government but also the UK Government and
Parliament felt bound to take account of the Provinces™ objections.
15. It hardly seems necessary to argue that convention requires the prior agreement of
Provinces whose powers will be affected by the amendment, since the Canadian Government
expressly admitted as much in the White Paper of 1965 entitled ˜The Amendment of the
Constitution of Canada™. It said:
˜The fourth general principle is that the Canadian Parliament will not request an amend-
ment directly affecting federal-provincial relationships without prior consultation and
agreement with the provinces. This principle did not emerge as early as others but since
1907, and particularly since 1930, has gained increasing recognition and acceptance.
The nature and the degree of provincial participation in the amending process, however,
have not lent themselves to easy definition.™
This statement, it is important to observe, was agreed by all the Provinces before the White
Paper was published. . . . It therefore represents a ˜convention™ in the literal sense, being an
agreed statement of the federal-provincial relationship. It is thus as authoritative a source of
constitutional convention as can be imagined.
16. It is therefore acknowledged by all concerned that as the conventions of the Canadian
constitution have developed they have hardened in favour of the protection of the rights of
the Provinces . . .
17. The ˜fourth general principle™ quoted above is framed in terms of convention binding
the Canadian Parliament rather than the UK Parliament. But it by no means follows that it
will not concern the UK Parliament. The whole object of section 7 of the Statute of
Westminster was to make the UK Parliament the guardian of the rights of the Provinces
and as already shown, constitutional principles make it essential that the UK Parliament
should not act as a mere automaton at the Canadian Government™s instance. It is inexorably
necessary, therefore, that the UK Parliament should be assured that the Canadian conven-
tions for the protection of the Provinces have been duly observed. If the UK Parliament failed
to satisfy itself of this, it would be acting as an automaton and failing in its function of
constitutional guardian. Where the requested amendment will affect the Provinces,
therefore, the UK Parliament must make sure that the Provinces concerned have consented.
As the precedents since 1930 make clear, the consent of the Provinces to amendments
affecting them has in fact always been sought and obtained by the Canadian Government,
so that the UK Parliament has not had to make any inquiry. But it would be entirely wrong
to conclude from that that the UK Parliament will never look behind the Canadian
Government™s request . . .
20. The inescapable conclusion is that section 7 of the Statute of Westminster 1931 has
left the UK Parliament with not only legal but also political responsibility for upholding the
federal constitution of Canada and acting as guardian of the rights of the Provinces.
175 Constitutional sources

Anachronistic and unwelcome as this responsibility may be, it was deliberately preserved in
1931 and nothing has since happened to alter it. The UK Parliament therefore has the duty,
when requested to amend the British North America Acts, to ask itself two questions: first,
does the amendment adversely affect Provincial legislative powers; and secondly, if so, have
the Provinces affected signified their consent?

In its report to the House of Commons, the Foreign A¬airs Committee con-
cluded that the United Kingdom Parliament was not constitutionally bound “
in particular, was not bound by convention “ to act automatically upon a
request from the Canadian Parliament for the repatriation of the Canadian con-
stitution. The Committee advised that it was ˜in accord with the established
constitutional position for the UK Government and Parliament to take account
of the federal character of Canada™s constitutional system, when considering
how to respond™ to such a request (para 14.4). On the other hand the Committee
was not persuaded that the United Kingdom Parliament could properly act
upon a request for patriation only if it was supported by all the Provinces. In
the Committee™s view the request must have a su¬cient degree of provincial
support for Parliament to be satis¬ed that it represented ˜the wishes of the
Canadian people as a federally structured community™ (para 114). The com-
mittee proposed a criterion for determining whether the required degree of
support existed (para 114).
Meanwhile some of the dissenting Provinces had instituted proceedings in
the Canadian courts to obtain a ruling on the constitutionality of the action
being taken by the Federal Government to secure patriation. Appeals from the
rulings of three provincial Courts of Appeal were heard by the Supreme Court
of Canada, which gave its judgment before the resolution of the Canadian
Parliament had been submitted to the Queen.

Reference re Amendment of the Constitution of Canada (1981)
125 DLR (3d) 1 (Supreme Court of Canada)

The Supreme Court decided by a majority of seven to two that there was no legal
impediment to the submission by the Canadian Parliament, without the agree-
ment of the Provinces, of a request for the constitutional amendments neces-
sary to effect patriation, and no legal restraint upon the power of the United
Kingdom Parliament to act on such a request. But the court had also been asked
to decide the following question:

Is it a constitutional convention that the House of Commons and Senate of Canada will not
request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great
Britain and Northern Ireland a measure to amend the Constitution of Canada affecting
federal-provincial relationships or the powers, rights or privileges granted or secured by the
Constitution of Canada to the provinces, their legislatures or governments without first
obtaining the agreement of the provinces?
176 British Government and the Constitution

The Supreme Court decided by a majority of six to three that this question
should be answered in the a¬rmative, and further that ˜at least a substantial
measure of provincial consent™ was required for compliance with the conven-
tion. Since the necessary measure of provincial agreement was wanting it would
be ˜unconstitutional in the conventional sense™ for the proposed request for con-
stitutional amendment to be submitted to the Queen. Passages quoted below
are from the majority opinion of Martland, Ritchie, Dickson, Beetz, Chouinard
and Lamer JJ.
In giving general consideration to the nature of conventions the court said:

The conventional rules of the Constitution present one striking peculiarity. In contradistinc-
tion to the laws of the Constitution, they are not enforced by the Courts. One reason for this
situation is that, unlike common law rules, conventions are not judge-made rules. They are
not based on judicial precedents but on precedents established by the institutions of
government themselves. Nor are they in the nature of statutory commands which it is the
function and duty of the Courts to obey and enforce. Furthermore, to enforce them would
mean to administer some formal sanction when they are breached. But the legal system
from which they are distinct does not contemplate formal sanctions for their breach.
Perhaps the main reason why conventional rules cannot be enforced by the Courts is that
they are generally in conflict with the legal rules which they postulate and the Courts are bound
to enforce the legal rules. The conflict is not of a type which would entail the commission of
any illegality. It results from the fact that legal rules create wide powers, discretions and rights
which conventions prescribe should be exercised only in a certain limited manner, if at all.

The following example was given to illustrate this point:

As a matter of law, the Queen, or the Governor General or the Lieutenant-Governor could
refuse assent to every bill passed by both Houses of Parliament or by a Legislative Assembly
[of a Province] as the case may be. But by convention they cannot of their own motion refuse
to assent to any such bill on any ground, for instance because they disapprove of the policy
of the bill. We have here a conflict between a legal rule which creates a complete discretion
and a conventional rule which completely neutralizes it. But conventions, like laws, are
sometimes violated. And if this particular convention were violated and assent were improp-
erly withheld, the courts would be bound to enforce the law, not the convention. They would
refuse to recognize the validity of a vetoed bill.

It had been argued that a question about the existence of a convention was a
political one and did not raise a justiciable issue appropriate for a court to decide.
This argument was dismissed on the ground, inter alia, that the statutes empow-
ering the provincial governments to put questions for resolution by the Courts
did so in terms wide enough to entitle them to obtain an answer to a question of
this kind. Although the question was ˜not con¬ned to an issue of pure legality™, it
had to do with ˜a fundamental issue of constitutionality and legitimacy™. The
court had not been asked to enforce a convention but rather ˜to recognise it if it
exists™. This the courts in England and the Commonwealth had done many times:
177 Constitutional sources

In so recognizing conventional rules, the Courts have described them, sometimes commented
upon them and given them such precision as is derived from the written form of a judgment.
They did not shrink from doing so on account of the political aspects of conventions, nor
because of their supposed vagueness, uncertainty or flexibility.
In our view, we should not, in a constitutional reference, decline to accomplish a type of
exercise that Courts have been doing of their own motion for years.

Did the convention exist? In addressing this question the court adopted Sir Ivor
Jennings™ view of the requirements for establishing a convention (above, p 161).
The court proceeded to examine in turn the precedents, the beliefs of the ˜actors™
or participants in government, and the reason for the alleged rule. The court
found ¬ve precedents where constitutional amendments had changed provincial
legislative powers and so had directly a¬ected federal-provincial relationships:

Every one of these five amendments was agreed upon by each Province whose legislative
authority was affected.
In negative terms, no amendment changing provincial legislative powers has been made
since Confederation when agreement of a Province whose legislative powers would have
been changed was withheld. . . .
The accumulation of these precedents, positive and negative, concurrent and without
exception, does not of itself suffice in establishing the existence of the convention; but it
unmistakedly points in its direction. Indeed, if the precedents stood alone, it might be argued
that unanimity is required.

Turning to the question whether the convention had been acknowledged by
the ˜actors in the precedents™, the court cited the o¬cial statement of Federal
Government policy, endorsed by all the Provinces and published in the White
Paper of 1965. (This statement, a¬rming the general principle of prior
consultation and agreement with the Provinces on amendments a¬ecting federal-
provincial relationships, is quoted in Wade™s Memorandum, above, para 15.)
Government ministers, the court found, had expressed themselves in similar
terms on a number of occasions, and successive discussions between the federal
and provincial governments on the subject of constitutional amendment had
proceeded on the assumption that a substantial degree of provincial consent was
required. It was clear to the court that not all the actors concerned had accepted
a principle of unanimous provincial consent. The court concluded 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 of provincial
consent is required and to decide further whether the situation before the Court meets with
178 British Government and the Constitution

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 suffi-
cient measure of provincial agreement.

Finally the court considered the reason for the rule, ¬nding this in the federal
principle embodied in the constitution of Canada as a federal union.
In the result the conclusion of the Supreme Court was that while the law did
not require provincial consent to the proposed resolution of the federal Houses
of Parliament, the evolution of convention had made a substantial measure of
provincial consent constitutionally necessary. Convention had become settled
in this sense without a¬ecting the legal position for, as the court held, it is
impossible for a convention to crystallise into law.
The court™s judgment did not indicate what would be a ˜substantial measure of
provincial consent™, but its decision that the support of only two Provinces did
not meet this condition caused the Federal Government to seek wider agreement
on a revised set of proposals for patriation. In the result nine Provinces (all
except Quebec) agreed to support the revised scheme. In pursuance of this
agreement an Address to the Queen was approved by both Houses of the
Canadian Parliament in December 1981, requesting the passage of legislation
which would enact a new Constitution for Canada, incorporating a Charter of
Rights, and transfer the power of constitutional amendment to Canadian insti-
tutions. The Canada Bill 1982, of which the long title was ˜A Bill to give e¬ect to
a request by the Senate and House of Commons of Canada™, was accordingly laid
before the United Kingdom Parliament. The Lord Privy Seal, Mr Humphrey
Atkins, moved the second reading of the bill in the House of Commons.

House of Commons, 17 February 1982 (HC Deb vol 18, cols 295, 297)

Mr Atkins: It is, of course, a matter for regret that the present proposals do not have the unan-
imous support of the Canadian provinces. But . . . the Supreme Court of Canada considered that
the consent of all the provinces was not required, either by law or by constitutional convention,
to the making of a request to us. No one would deny that nine out of 10 provinces constitutes
the substantial measure of provincial consent to which the Supreme Court referred.

After referring to the preamble to the Statute of Westminster 1931, Mr Atkins

It would, of course, be inconsistent with this ˜request and consent™ convention for
Parliament to make amendments which have not been requested and consented to by
Canada in the first place. . . . In the light of this, I have to state the clear view of the
Government that any amendment to the Canada Bill which may be put forward should not
be passed by the House.
179 Constitutional sources

The Canada Bill was duly passed by both Houses without amendment.
Richard Kay ((1982) 4 Supreme Court Law Review 23, 33) remarks that the
Canadian Supreme Court™s part in the process which resulted in agreement
between the Federal Government and nine of the ten provincial governments
was crucial, and that perhaps it was only the court™s intervention that could have
broken the political logjam. He adds: ˜But the Court intervened as another
political actor, not as a court of law™. Is this a right understanding of the court™s

Devolution and the structure
of the United Kingdom

1 The United Kingdom as a union state
(a) Federalism
(b) Devolution
2 The Countries of the United Kingdom
(a) England
(b) Scotland
(c) Wales


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( 155 .)