Reference Re the British North America Act and the Federal Senate, (1979) 30 N.R. 271 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Pigeon, Dickson, Estey, Pratte and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 21, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 30 N.R. 271 (SCC);102 DLR (3d) 1;30 NR 271;1979 CanLII 188 (SCC);[1980] 1 SCR 54;[1980] 1 SCR 783;1979 CanLII 169 (SCC)

Ref. Re British North Am. Act (1979), 30 N.R. 271 (SCC)

MLB headnote and full text

Re British North America Act and the Federal Senate

Indexed As: Reference Re the British North America Act and the Federal Senate

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Pigeon, Dickson, Estey, Pratte and McIntyre, JJ.

December 21, 1979.

Summary:

This case arose out of a reference to the Supreme Court of Canada by the Governor in Council concerning the legislative authority of the Parliament of Canada to abolish or make changes in the character of the federal Senate. The questions posed are set out in paragraphs 1 and 59.

The Supreme Court of Canada held that the Federal Government did not have the power to abolish the federal Senate. The Supreme Court of Canada stated that the Federal Government was empowered to enact unilaterally changes with respect to the federal Senate which would not affect the fundamental character of the Senate.

Constitutional Law - Topic 5572

Enumeration in s. 91 of the British North America Act - Amendment of the Constitution of Canada - Scope of amendment power of the Federal Government - The Supreme Court of Canada stated that the power of amendment, granted to the Federal Government by s. 91(1) of the British North America Act, relates to the constitution of the Federal Government in matters of interest only to the Federal Government (see paragraphs 28, 31, 86 and 89) - The Supreme Court of Canada held that the Federal Government did not have the power to abolish the federal Senate - The Supreme Court of Canada stated that the Federal Government was empowered to unilaterally enact changes with respect to the federal Senate which would not affect the fundamental character of the Senate (see paragraphs 57 and 115).

Words and Phrases

Constitution of Canada - The Supreme Court of Canada discussed the meaning of the phrase "Constitution of Canada" as found in s. 91(1) of the British North America Act 1867 (see paragraphs 20 to 23 and 79 to 81).

Cases Noticed:

Quebec North Shore Paper Company v. Canadian Pacific Limited, 9 N.R. 471; [1977] 2 S.C.R. 1054, refd to. [paras. 26 and 84].

McNamara Construction (Western) Limited v. The Queen, 13 N.R. 181; [1977] 2 S.C.R. 654, refd to. [paras. 27 and 85].

Regulation and Control of Aeronautics in Canada, In re the, [1932] A.C. 54, refd to. [paras. 30 and 88].

Attorney General of Nova Scotia v. Attorney General of Canada and Lord Nelson Hotel Company Limited, [1951] S.C.R. 31, refd to. [paras. 32 and 90].

Initiative and Referendum Act, In re the (1916), 27 Man. R. 1, refd to. [paras. 33 and 91].

Statutes Noticed:

British North America Act 1867, sect. 91(1) [paras. 6 and 64].

Authors and Works Noticed:

Parliamentary Debates on the Subject of Confederation of the British North American Provinces, Quebec, 1865, pages 35, 38, 88 [paras. 15 and 73].

Counsel:

J.J. Robinette, Q.C., Francois Mercier, Q.C. and T.B. Smith, Q.C., supporting proposed legislation;

D.W. Mundell, Q.C. and Lorraine E. Weinrib, for the Attorney General of Ontario;

Jerrold W. Kavanagh, Q.C. and Mollie Gallagher, for the Attorney General of Nova Scotia;

Alan D. Reid and Gordon F. Gregory, Q.C., for the Attorney General of New Brunswick;

Ian W.H. Bailey, for the Attorney General of Prince Edward Island;

Patrick McDonald, for the Attorney General of Saskatchewan;

Wm. Henkel, Q.C., for the Attorney General of Alberta;

James A. Nesbitt, Q.C., for the Attorney General of Newfoundland.

This reference was heard by LASKIN, C.J.C., MARTLAND, RITCHIE, PIGEON, DICKSON, ESTEY, PRATTE and McINTYRE, JJ. of the Supreme Court of Canada at Ottawa, Ontario on March 20 and 21, 1979.

The judgment of the Supreme Court of Canada was delivered on December 21, 1979 - see paragraphs 1 to 58 (English language judgment) and paragraphs 59 to 116 (French language judgment).