Re Amendment of the Constitution of Canada [1981] 1 SCR 753

Facts

• The Supreme Court of Canada heard the Re Amendment of the Constitution of Canada reference, which addressed federal efforts to patriate (transfer) the Canadian constitution and establish new amendment procedures without unanimous provincial support.
• The case examined the interplay between formal legal requirements and established constitutional practices, specifically considering whether provincial consent was legally required for constitutional amendments affecting provincial powers.
• The Court analyzed similar amendment frameworks in other federal systems, such as those of the United States and Australia, for context.
• The Court discussed the continuing significance of unwritten constitutional principles such as federalism and democratic practices.

Issues

1. Whether established practices or conventions require provincial consent for constitutional amendments, despite the absence of explicit legal provisions.
2. Whether constitutional conventions are legally enforceable or merely guide governmental and intergovernmental relations.
3. How constitutional amendment processes in Canada compare to those of other federal systems.

Decision

• The Supreme Court distinguished between legal rules and constitutional practices (conventions), holding that conventions are not legally binding or enforceable by the courts.
• The established practice of seeking substantial provincial consent for amendments affecting provincial powers was recognized as a significant political convention rather than a legal requirement.
• The decision acknowledged the importance of unwritten constitutional principles, including provincial consent, as part of Canada's constitutional framework.
• The Court’s interpretation influenced subsequent reforms, most notably the Constitution Act, 1982, which incorporated requirements for varying levels of provincial consent.

Legal Principles

• Constitutional conventions, though not enforceable at law, are recognized as foundational and direct political behavior within government.
• Courts distinguish legal rules from political conventions, acknowledging that the authority of conventions arises from practice and political expectations rather than legal compulsion.
• Unwritten constitutional principles, including federalism and democracy, play an interpretive role when courts consider the scope and operation of constitutional amendments.
• Fundamental changes to the constitution may require political practices, such as provincial consent, even in the absence of formal legal requirements.

Conclusion

The Supreme Court of Canada affirmed the distinction between constitutional law and convention, recognizing the political necessity but legal non-binding nature of provincial consent for constitutional amendments. Its reasoning directly influenced later constitutional reforms and remains central to understanding the development and amendment of Canada’s constitutional framework.