The original constitutional reform package tabled by Prime Minister Trudeau in the fall of 1980 had provided for the possibility of enacting constitutional amendments through a national referendum. However, most of the provinces were opposed to the referendum option and demanded that Parliament and the provincial legislatures have exclusive control over the constitutional amendment process. In the November 1981 agreement, Trudeau acceded to this demand. The amending procedures set out in the 1982 Act do not provide for a referendum procedure to effect constitutional change.
While Part V does not require a referendum on constitutional change, it does not prohibit such popular consultation either. In 1992, Parliament enacted the Referendum Act, which permits, but does not require, the government of Canada to order a referendum on questions relating to the Constitution of Canada.15Some provinces have gone even further and enacted legislation requiring a "binding"16referendum before the adoption of a constitutional resolution by the legislature.17Pursuant to the federal Act, a national referendum was held on
the Charlottetown Accord in October 1992.18Although the results of a referendum held under federal law are not legally binding, as a practical matter, it is very unlikely that any government would be able to ignore the results of a referendum it had ordered. For example, after the Charlottetown Accord was defeated in a 1992 referendum, Canadian governments recognized that it could not proceed.19The referendum requirements at the federal and provincial levels have no official constitutional status and are not a substitute for the constitutional amendment process in Part V. Even if a constitutional amendment has been approved in a referendum, it must be adopted by the appropriate number of legislative bodies. Moreover, since the referendum requirements are contained in ordinary statutes and are not part of the Constitution of Canada, they can theoretically be repealed at any time. Yet, given the widespread opposition among Canadians to closed-door constitutional negotiations, it seems more likely that existing referendum requirements will be strengthened rather than diminished in the future. Moreover, given the precedent established with the Charlottetown Accord, it would seem likely that any future constitutional amendment involving significant changes to the Canadian
constitution will have to be submitted...