Quebec Constitution Amendment Reference (No. 2), (1982) 45 N.R. 317 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 06, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 45 N.R. 317 (SCC);45 NR 317;[1982] 2 SCR 793;1982 CanLII 219 (SCC);140 DLR (3d) 385

Que. Constitution Amendment Ref. (1982), 45 N.R. 317 (SCC)

MLB headnote and full text

Quebec Constitution Amendment Reference (No. 2): Attorney General of Quebec (Appellant) v. Attorney General of Canada (Respondent) et L'Association Canadienne-Francaise de l'Ontario and The Grand Council of the Crees (of Quebec) (Intervenors)

Indexed As: Quebec Constitution Amendment Reference (No. 2)

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.

December 6, 1982

Summary:

On September 28, 1981, the Supreme Court of Canada in a judgment reported [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1; 125 D.L.R.(3d) 1, ruled on the Constitution amendment references by the Provinces of Quebec, Manitoba and Newfoundland. The Court held that, although there was a constitutional convention that Parliament will not seek amendments to the Constitution without obtaining the agreement of the provinces, the agreement of the provinces was not legally required for amendment of the Constitution. Subsequently, the governments of Canada and nine of the provinces, with Quebec dissenting, agreed on a Constitution amendment formula and the entrenchment of the Canadian Charter of Rights and Freedoms in the Constitution. On November 18, 1981, the Minister of Justice of Canada placed before the House of Commons a Resolution to be presented to the Queen in Great Britian for patriation of the Canadian Constitution in the form of the Constitution Act, 1982. On November 25, 1981, the Government of Quebec expressed its opposition and referred the matter to the Quebec Court of Appeal. Quebec sought a ruling that there was a constitutional convention requiring unanimous consent of the ten provinces to constitutional amendments and, alternatively that Quebec could on the principle of duality veto any constitutional amendment affecting its legislative competence or the status or role of its legislature or government within the Canadian federation.

The Resolution was passed by the Parliament of Canada and was introduced in the British Parliament in December, 1981. The Quebec Court of Appeal heard argument on Quebec's reference on March 15-17, 1982. The Constitution Act, 1982, was passed by the British Parliament and received Royal Ascent on March 29, 1982. The Quebec Court of Appeal delivered judgment of April 7, 1982, unanimously rejecting Quebec's submissions. Quebec appealed.

The Supreme Court of Canada dismissed the appeal, reaffirmed that the Government of Canada could unilaterly amend the Canadian Constitution without the unanimous consent of the ten provinces and held that Quebec could not veto the constitutional amendments affecting it, rejecting the notion of duality.

Constitutional Law - Topic 63

General - Conventions - Nature of - The Supreme Court of Canada discussed and defined the nature of constitutional conventions - See paragraphs 30 to 33, 83 to 97.

Constitutional Law - Topic 68

General - Conventions - Proof or establishment of - The Supreme Court of Canada set out the requirements for establishing the existence of a constitutional convention - The court stated that the issue involved three questions: (1) What are the precedents? (2) Did the actors in the precedents believe they were bound by a rule? (the most important of the questions)(3) Is there a reason for the rule? - See paragraphs 30 to 33, 83 to 97 - The court held that a convention must have been articulated to be accepted - See paragraphs 93 to 96.

Constitutional Law - Topic 109

Definitions - Convention - The Supreme Court of Canada defined the nature of a constitutional convention - See paragraphs 30 to 33.

Constitutional Law - Topic 1008

Interpretation of Constitution - Constitutional references - Role of the courts - The Supreme Court of Canada held that in a reference on constitutional conventions the court can answer the question referred, notwithstanding its political aspects - See paragraphs 46 to 48.

Constitutional Law - Topic 2106

Amendment of Constitution - By unilateral federal action - The Supreme Court of Canada held that the Canadian constitution could be amended without the agreement of all the provinces - The court reaffirmed that there was no constitutional convention requiring the consent of the ten provinces to amendments and held that there was no convention that amendments could be vetoed by Quebec, rejecting the notion of the duality of the Canadian Federation espoused by Quebec.

Courts - Topic 3033

Supreme Court of Canada - Jurisdiction - General - Final judgment of the highest court of final resort - What constitutes - Supreme Court Act, R.S.C. 1970, c. S-19, s. 37 - By statute the Government of Quebec made a constitutional amendment reference to the Quebec Court of Appeal - The Supreme Court of Canada held that the opinion of the Quebec Court of Appeal on the reference was a judgment of the Court of Appeal which could be appealed to the Supreme Court of Canada under s. 37 of the Supreme Court Act, notwithstanding that the issue became moot after the opinion of the Quebec Court of Appeal was delivered - See paragraphs 46, 49 to 53.

Courts - Topic 3040

Supreme Court of Canada - Jurisdiction - General - Moot issues - After the judgment of the Quebec Court of Appeal was delivered on a constitutional amendment reference, the issue was rendered moot by passage of the Constitution Act, 1982 by the British Parliament - The Supreme Court of Canada agreed to hear the appeal, notwithstanding that the issue was moot, because the issue should be answered by the Supreme Court of Canada to dispel any doubt over it - See paragraphs 46, 49 to 53.

Statutes - Topic 1647

Interpretation - Extrinsic Aids - Legislative history - White papers - The Supreme Court of Canada considered a government white paper in construing the Canadian Constitution - See paragraphs 64 to 73.

Statutes - Topic 1653

Interpretation - Extrinsic Aids - Legislative history - Political speeches - The Supreme Court of Canada considered a speech by the Minister of Justice of Canada on constitutional amendments in construing the constitutionality of proposed amendments to the Constitution - See paragraphs 67, 73.

Cases Noticed:

Constitutional Amendment Reference, [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R..(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1; 125 D.L.R.(3d) 1, folld. [para. 3].

Statutes Noticed:

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 37 [para. 51].

Authors and Works Noticed:

Favreau, Guy, Constitutional Amendment in a Canadian Canada (1966-67), 12 McGill, L.J. [paras. 63, 85].

Favreau, Guy, White Paper on Amendment of the Constitution of Canada (1965) [paras. 64, 85].

Hogg, Constitutional Law of Canada (1977), p. 9 [para. 91].

Jennings, W. Ivor, The Law and the Constitution (5th Ed. 1959), p. 136 [paras. 32, 88, 90].

Counsel:

Jean-K. Samson, Henri Brun, Robert Decary and Odette Laverdiere, for the appellant;

Raynold Langlois, Michel Robert, Edward Goldenberg, Louis Reynolds, Louyse Cadieux, Luc Martineau and Claude Joli-Coeur, for the respondent;

Emile Colas, Q.C., for the intervenant Association canadienne-francaise de l'Ontario;

James O'Reilly, for the intervenant the Grand Council of the Crees (of Quebec).

This case was heard on June 14 and 15, 1982, at Ottawa, Ontario, before LASKIN, C.J.C., RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD, LAMER and WILSON, JJ., of the Supreme Court of Canada.

On December 6, 1982, the following judgment of the court was delivered in French and English: