Supreme Court of Canada
Re: Objection by Quebec to a Resolution to amend the Constitution,  2 S.C.R. 793
IN THE MATTER of a Reference to the Court of Appeal of Quebec concerning the Constitution of Canada
The Attorney General of Quebec Appellant;
The Attorney General of Canada Respondent;
The Association canadienne-française de l’Ontario
The Grand Council of the Crees (of Quebec) Interveners.
File No.: 17029.
1982: June 14, 15; 1982: December 6.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law—Amendment of Constitution—Proposed amendment of Constitution affecting provincial powers—Quebec only dissenting province—Whether conventional rule of unanimity exists—Whether Quebec has a conventional power of veto.
This Reference results from the objection by Quebec to a Resolution regarding a proposed patriation and amendment of the Constitution of Canada, adopted by the Parliament of Canada in December 1981. This Resolution, which contained an address to Her Majesty the Queen in right of the United Kingdom, reflected in substance the constitutional agreement concluded on November 5, 1981, between Canada and the nine other provinces. By a decree, the Government of Quebec referred to the Quebec Court of Appeal the following question:
Is the consent of the Province of Quebec constitutionally required, by convention, for the adoption by the Senate and the House of Commons of Canada of a resolution the purpose of which is to cause the Canadian Constitution to be amended in such a manner as to affect:
(i) the legislative competence of the Legislature of the Province of Quebec in virtue of the Canadian Constitution;
(ii) the status or role of the Legislature or Government of the Province of Quebec within the Canadian federation;
and, does the objection of the Province of Quebec render the adoption of such resolution unconstitutional in the conventional sense?
The Court of Appeal answered this question in the negative. The Attorney General of Quebec appealed from this decision.
Held: The appeal should be dismissed. The constitutional question should be answered in the negative.
Quebec has no conventional power of veto over constitutional amendments affecting the legislative competence of the Province. Appellant failed to demonstrate compliance with the most important requirement for establishing a convention, that is, acceptance or recognition of such a convention by the actors in the precedents. This recognition is not only an essential element of conventions: it is the normative one, the formal one which enables us unmistakably to distinguish a constitutional rule from a rule of convenience or from political expediency. As for the conventional rule of unanimity, it has already been unanimously rejected by this Court in Re: Resolution to amend the Constitution,  1 S.C.R. 753. Appellant advanced no compelling reason why this opinion should be modified.
Re: Resolution to amend the Constitution,  1 S.C.R. 753, followed.
APPEAL from a judgment of the Court of Appeal of Quebec,  C.A. 33, 134 D.L.R. (3d) 719, which answered in the negative a constitutional question referred to it by the Government of Quebec pursuant to the Act respecting a reference to the Court of Appeal, 1981. Appeal dismissed.
Jean-K. Samson, Henri Brun, Robert Décary and Odette Laverdière, for the appellant.
Raynold Langlois, Michel Robert, Edward Goldenberg, Louis Reynolds, Louyse Cadieux, Luc Martineau and Claude Joli-Cœur, for the respondent.
Emile Colas, Q.C., for the intervener the Association canadienne-française de l’Ontario.
James O’Reilly, for the intervener The Grand Council of the Crees (of Quebec).
This is an appeal from the opinion pronounced on April 7, 1982, by the Quebec Court of Appeal on a question referred to it by the Government of Quebec regarding the Resolution to amend the Constitution.
This appeal is brought as of right pursuant to s. 37 of the Supreme Court Act (R.S.C. 1970, c. S-19) and to s. 1 of An Act respecting a reference to the Court of Appeal, (1981 (Que.), c. 17).
The reference is the second one on this subject. The first reference also gave rise to an appeal to this Court in which judgment was delivered on September 28, 1981 at the same time as in two other appeals arising from a reference by the Government of Manitoba and a reference by the Government of Newfoundland: Re: Resolution to amend the Constitution,  1 S.C.R. 753, hereinafter referred to as the First Reference.
Following the judgment in the First Reference, the Government of Canada and the governments of the ten provinces held a Constitutional Conference, on November 2 to 5, 1981, to seek agreement on the patriation of the Constitution together with a charter of rights and an amending formula. On November 5, 1981 Canada and nine of the ten provinces signed an agreement to this effect. Quebec was the dissenting province.
By the agreement of November 5, 1981 in essence, the Government of Canada and the governments of Ontario and New-Brunswick accepted, with some amendments, a procedure for amending the Constitution of Canada, the so-called Vancouver formula, which had been agreed upon on April 16, 1981 by the eight other provinces. Nova-Scotia, Manitoba, British‑Columbia, Prince Edward Island, Alberta, Saskatchewan and Newfoundland also accepted, with some amendments, the entrenchment of a Canadian Charter of Rights, binding on Parliament and the provincial legislatures, already agreed upon by the Government of Canada and the Governments of Ontario and New-Brunswick.
On November 18, 1981 the Minister of Justice of Canada laid before the House of Commons a resolution which contained a joint address of the Senate and the House of Commons to be presented to Her Majesty the Queen in right of the United Kingdom. While in substance the joint address reflected the agreement of November 5, 1981 it was similar in form to the one quoted in the First Reference, at p. 766. It included a draft United Kingdom statute the short title of which was the Canada Act which, in turn, had appended to it another draft statute entitled the Constitution Act, 1981 later designated as the Constitution Act, 1982. The latter statute provided for the entrenchment of a Canadian Charter of Rights and Freedoms and it contained the new procedure for amending the Constitution of Canada. The Constitution Act, 1982 also contained a range of other provisions which it is unnecessary to enumerate.
Section 2 of the Canada Act constituted the so-called abdication clause, reading as follows:
2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law.
On November 25, 1981 the Government of Quebec expressed its formal opposition to the proposed Resolution in Decree No. 3214-81:
GOVERNMENT OF QUEBEC
CONCERNING the objection by Quebec to the proposed patriation and amendment of the Constitution of Canada
* * *
WHEREAS on November 18, 1981 the federal government tabled in the House of Commons a motion regarding the patriation and amendment of the Constitution of Canada;
WHEREAS if implemented, this motion would have the effect of substantially reducing the powers and rights of Quebec and of its National Assembly without its consent;
WHEREAS it has always been recognized that no change of this kind could be made without the consent of Quebec.
BE IT RESOLVED, on the motion of the Premier:
THAT Quebec formally vetoes the Resolution tabled in the House of Commons on November 18, 1981 by the federal Minister of Justice.
THAT this objection be officially communicated to the federal government and the governments of the other provinces.
DEPUTY CLERK OF THE
On the same date, the Government of Quebec ordered the present reference in Decree No. 3215-81. It is unnecessary to quote this decree however, as it was superseded by Decree No. 3367-81, the text of which is quoted below, adopted on December 9, 1981 and drafted in almost identical terms as Decree No. 3215-81, except for two minor corrections in the preamble which made allowance for the fact that by then, the joint address had already been voted.
The joint address was adopted by the House of Commons on December 2, 1981 and by the Senate on December 8, 1981. It included further amendments agreed upon by Canada and all the provinces except Quebec.
On December 8, 1981 the Governor General of Canada received the text of the joint address and, pursuant to the advice of Her Majesty’s Privy Council for Canada, transmitted it to Her Majesty on December 9, 1981.
On the same date, the Government of Quebec re-ordered the present reference in Decree No. 3367-81:
[TRANSLATION] WHEREAS the Senate and House of Commons of Canada adopted a Resolution regarding the Constitution of Canada;
WHEREAS this Resolution requests the introduction in the Parliament of the United Kingdom of a bill entitled the Canada Act which, if adopted by the Parliament of the United Kingdom, will most notably have the
effect of enacting for Canada the Constitution Act, 1981;
WHEREAS the proposed legislation has the effect of making significant changes in the status and role of Quebec within the Canadian federal system;
WHEREAS Quebec forms a distinct society within the Canadian federation;
WHEREAS the Supreme Court of Canada stated on September 28, 1981 that the consent of the provinces is constitutionally necessary for the adoption of this proposal;
WHEREAS Quebec has not agreed and has objected to the proposed changes;
WHEREAS no change of a similar significance to that proposed in this Resolution has to date been made without the consent and over the objection of Quebec;
WHEREAS it is expedient to submit to the Court of Appeal for hearing and consideration, pursuant to the Court of Appeal Reference Act the question herein below set out.
ACCORDINGLY, it is ordered, upon the proposal of the Minister of Justice, that the following question be submitted to the Court of Appeal for hearing and consideration:
Is the consent of the Province of Quebec constitutionally required, by convention, for the adoption by the Senate and the House of Commons of Canada of a resolution the purpose of which is to cause the Canadian Constitution to be amended in such a manner as to affect:
i) the legislative competence of the Legislature of the Province of Quebec in virtue of the Canadian Constitution;
ii) the status or role of the Legislature or Government of the Province of Quebec within the Canadian federation;
and, does the objection of the Province of Quebec render the adoption of such resolution unconstitutional in the conventional sense?
On December 22, 1981 the Government of the United Kingdom introduced in the Parliament of Westminster a bill known as “A Bill to Give Effect to a Request of the Senate and House of Commons of Canada” which was to become the Canada Act 1982.
The Quebec Court of Appeal heard counsel in argument on the reference on March 15, 16 and 17, 1982.
The bill introduced at Westminster was passed on March 25, 1982 and received royal assent on March 29, 1982. The Canada Act 1982 came into force on this date.
On April 7, 1982 the Quebec Court of Appeal rendered its unanimous opinion answering in the negative the question referred to it.
On April 13, 1982 the Attorney General of Quebec appealed to this Court and on April 15, 1982 at the request of the appellant, Lamer J. stated a constitutional question pursuant to Rule 17 of this Court. The terms of this question are identical to those of the question referred to the Quebec Court of Appeal.
On April 17, 1982 the Constitution Act, 1982 was proclaimed in force by the Queen under the Great Seal of Canada and has been in force since that date.
II—The opinion of the Court of Appeal
The unanimous opinion of the Quebec Court of Appeal, answering the question in the negative, is a collective one. It has been signed as a multiple-author opinion by the five judges who participated in the reference, Crête, C.J.Q. and Montgomery, Turgeon, Monet and Jacques JJ.A.
The Court of Appeal first observed that at the time of the hearing, on March 15, 16 and 17, 1982 the process of constitutional amendment had not yet been completed. Although it had been conceded by counsel for the Attorney General for Quebec that an affirmative answer to the question could have political consequences but no legal ones, the Court of Appeal took the view that, given the broad terms of the Court of Appeal Reference Act, R.S.Q. 1977, c. R‑23, it should answer a question which had to do with the “legitimacy” if not the “legality” of the patriation process.
The Court of Appeal was asked by the Attorney General of Quebec to answer the question in the
affirmative on the basis of two alternative submissions. According to the first submission, there was a convention requiring the unanimous consent of the ten provinces to any constitutional amendment of the type in issue. According to the second submission, because of the principle of duality, Quebec had by convention a power of veto over any constitutional amendment affecting the legislative competence of the Province or the status or role of its legislature or government within the Canadian federation.
The Court of Appeal rejected the first submission as it found that this Court had already ruled it out in the First Reference. It rejected the second submission on the following grounds: at law, all the provinces are fundamentally equal and the Attorney General of Quebec had failed to establish that either the Government of Canada or the other provinces had conventionally recognized in Quebec any special power of veto over constitutional amendment not possessed by the other provinces.
The Court of Appeal further held that at the Constitutional Conference of November 2 to 5, 1981 the degree of provincial consent required had been determined and achieved by the political actors, in accordance with the judgment of this Court in the First Reference.
III—The position of the parties
Before coming to the submissions made by the parties, it should be said at the outset that the Attorney General of Canada conceded that the Canadian Charter of Rights and Freedoms contained in the Constitution Act, 1982 affects the legislative competence of all the provinces including Quebec.
To the question whether the status or role of the Legislature or Government of the Province of Quebec within the Canadian federation is affected by the Constitution Act, 1982 the factum of the Attorney General of Canada makes the following answer:
As for the role and status of Quebec within the Canadian federation, this Act provides Quebec a constitutionally guaranteed right to participate in the amendment of the constitution and to opt out of amendments
that derogate from its legislative powers, its proprietary rights or any other rights or privileges of its legislature or government (section 38(2)) under reserve of its constitutionally guaranteed right to financial compensation when the amendment involves a transfer of provincial legislative competence to Parliament in relation to education or other cultural matters (section 40).
This answer is a qualified admission, but an admission nonetheless, that the role and status of Quebec within the Canadian federation are modified by the procedure for amending the Constitution.
The Canadian Charter of Rights and Freedoms is not identical to the Charter of Rights and Freedoms referred to in the First Reference and the procedure for amending the Constitution of Canada differs substantially from the amending procedure also referred to in the First Reference. But it is unnecessary to review these differences. It is sufficient to note that in spite of these differences and on the whole, the Constitution Act, 1982 directly affects federal‑provincial relationships to the same relevant extent as the proposed constitutional legislation discussed in the First Reference.
The position of the appellant was that the appeal should be allowed and the constitutional question answered in the affirmative on the basis of the same two submissions which he had made to the Court of Appeal, the first relating to a conventional rule of unanimity and the second to a conventional power of veto said to have been held by Quebec. (Actually, the submission relating to unanimity was made in the second place, but it will be dealt with first, as was done in the Court of Appeal).
While both submissions seek the same answer to the constitutional question, they are alternative ones, as they have to be, for not only are they quite distinct from each other, they actually contradict one another: the rule of unanimity is predicated on the fundamental equality of all the provinces as it would give a power of veto to each of them whereas an exclusive power of veto for Quebec negates the rule of unanimity as well as the principle of fundamental equality. Also, and as will be seen below, the reason which is said to anchor the
conventional rule is a different one in each submission.
In the First Reference, there was no substantial disagreement between the majority opinion on convention, (hereinafter referred to as the majority opinion), and the dissenting opinion on convention, (hereinafter referred to as the dissenting opinion), with respect to the nature of constitutional conventions and the requirements for establishing a convention.
The majority opinion as well as the dissenting opinion both approved, at pp. 852 and 883, the definition of a convention given by Freedman C.J.M. in the Manitoba Reference and quoted at p. 883 of the First Reference:
What is a constitutional convention? There is a fairly lengthy literature on the subject. Although there may be shades of difference among the constitutional lawyers, political scientists, and Judges who have contributed to that literature, the essential features of a convention may be set forth with some degree of confidence. Thus there is general agreement that a convention occupies a position somewhere in between a usage or custom on the one hand and a constitutional law on the other. There is general agreement that if one sought to fix that position with greater precision he would place convention nearer to law than to usage or custom. There is also general agreement that “a convention is a rule which is regarded as obligatory by the officials to whom it applies”. Hogg, Constitutional Law of Canada (1977), p. 9. There is, if not general agreement, at least weighty authority, that the sanction for breach of a convention will be political rather than legal.
At page 888 of the First Reference, the majority opinion adopted the following passage of Sir W. Ivor Jennings, The Law and the Constitution (5th ed., 1959), at p. 136:
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.
The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with generally accepted principles. It should be borne in mind however that conventional rules, although quite distinct from legal ones, are nevertheless to be distinguished from rules of morality, rules of expediency and subjective rules. Like legal rules, they are positive rules the existence of which has to be ascertained by reference to objective standards. In being asked to answer the question whether the convention did or did not exist, we are called upon to say whether or not the objective requirements for establishing a convention had been met. But we are in no way called upon to say whether it was desirable that the convention should or should not exist and no view is expressed on the matter.
Subject to an important qualification which will be dealt with in due course, appellant accepted the above stated requirements for establishing conventions and made his two submissions within the framework defined by this Court in the First Reference.
With respect to the precedents, positive and negative, the appellant invoked for the purposes of his two submissions the same precedents as had been relied upon by the majority opinion in the First Reference, at pp. 891 to 894.
The positive precedents are the constitutional amendments leading to the Constitution Act, 1930, the Statute of Westminster, 1931, the Constitution Act, 1940, the British North America Act, 1951 and the Constitution Act, 1964, all of which directly affected federal-provincial relationships in the sense of changing legislative powers and each of which was agreed upon by each province whose legislative authority was affected.
The negative precedents are the failure of a proposed amendment relating to indirect taxation in 1951 and the failure of the Constitutional Conferences of 1960, 1964 and 1971. The precedents also comprise, in negative terms, the fact that no amendment changing provincial legislative powers
had been made when agreement of a province whose legislative power would have been changed was withheld.
It was further pointed out by the appellant that no relevant constitutional amendment had been passed without the consent of Quebec and that with respect to one of them, the Constitution Act, 1964 Quebec alone had delayed the amendment already agreed upon by the nine other provinces as early as 1962. Quebec finally gave its consent in 1964 and the amendment was passed.
The appellant also underlined that the Constitution Act, 1940 had been delayed because three provinces, Quebec, New-Brunswick and Alberta had not yet consented to it; that the lack of agreement of two provinces, Ontario and Quebec, had prevented a proposed constitutional amendment relating to indirect taxation in 1951; and that the lack of agreement of the sole Province of Quebec had caused the failure of the Constitutional Conference of 1964, relating to the Fulton-Favreau formula as well, in practice, as the failure of the Constitutional Conference of 1971 relating to the Victoria Charter, although in the latter case, Saskatchewan did not make its position known.
It was recognized by the appellant that there must be a reason for the alleged conventional rule.
The reason for the unanimity rule, he argued, was the federal principle within the meaning given to this principle by the majority opinion in the First Reference.
The reason for the conventional rule giving to Quebec a power of veto was said to be the principle of duality, the meaning and nature of which will be discussed in more detail below.
Finally, as to the requirement that the actors in the precedents believe that they were bound by the rule, the appellant submitted that it had been met. But his counsel substantially qualified this submission by pleading in his factum and in oral argument that the precedents and the reason for the rule suffice to establish a constitutional convention
and, accordingly that the recognition of the actors in the precedents is not required or alternatively that recognition can be tacit and inferred from the precedents.
The respondent submitted that the Court should refuse to answer the question. He also submitted that if the Court should answer the question it should answer in the negative on the basis of the First Reference. He submitted alternatively that, if the Court should answer the question, it should answer that the political leaders had complied with the convention recognized by this Court in the First Reference.
The interveners generally supported the position of the appellant.
IV—Whether the question should be answered
The respondent advanced two reasons why the Court should refuse to answer the question: it was a purely political question and it had become academic.
The first objection had also been raised in the First Reference and dismissed in the majority opinion as well as in the dissenting opinion. The majority opinion adopted the view of Freedman C.J.M. on this point, at p. 884:
In my view, this submission goes too far. Its characterization of Question 2 as “purely political” overstates the case. That there is a political element embodied in the question, arising from the contents of the joint address, may well be the case. But that does not end the matter. If Question 2, even if in part political, possesses a constitutional feature, it would legitimately call for our reply.
In my view, the request for a decision by this Court on whether there is a constitutional convention, in the circumstances described, that the Dominion will not act without the agreement of the Provinces poses a question that it, [sic], at least in part, constitutional in character. It therefore calls for an answer, and I propose to answer it.
This view is still valid and ought to prevail in the case at bar.
On the other hand, counsel for the respondent is right in asserting that the constitutional question
has become moot. The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable. It contains a new procedure for amending the Constitution of Canada which entirely replaces the old one in its legal as well as in its conventional aspects. Even assuming therefore that there was a conventional requirement for the consent of Quebec under the old system, it would no longer have any object or force.
However, when the reference was ordered, when it was argued before the Court of Appeal and when the Court of Appeal delivered its certified opinion on April 7, 1982 it could not be said that the question was moot since the process of constitutional amendment had not been completed, the Constitution Act, 1982 having not yet been proclaimed.
This opinion of the Court of Appeal is now standing. Under An Act respecting a reference to the Court of Appeal, supra, this opinion is deemed to be a judgment of the Court of Appeal which may be appealed to this Court as a judgment in an action. In such a case, an appeal to this Court lies as of right under s. 37 of the Supreme Court Act:
37. An appeal lies to the Supreme Court from an opinion pronounced by the highest court of final resort in a province on any matter referred to it for hearing and consideration by the lieutenant governor in council of that province whenever it has been by the statutes of that province declared that such opinion is to be deemed a judgment of the highest court of final resort and that an appeal lies therefrom as from a judgment in an action.
While this Court retains its discretion to entertain or not to entertain an appeal as of right where the issue has become moot, it may, in the exercise of its discretion, take into consideration the importance of the constitutional issue determined by a court of appeal judgment which would remain unreviewed by this Court.
In the circumstances of this case, it appears desirable that the constitutional question be answered in order to dispel any doubt over it and it accordingly will be answered.
V—Whether there exists a conventional rule of unanimity
It was the appellant’s contention that the majority opinion in the First Reference has left open the question whether there existed a conventional rule of unanimity. His main argument for so contending was that the majority opinion did not limit the meaning of the questions relating to convention solely to determining whether there existed a convention which required the unanimous consent of the provinces.
It is quite true that the majority opinion in the First Reference gave to the constitutional questions a wider scope than did the dissenting opinion, but this enabled the majority to consider all arguments, including the one relating to unanimity, which it clearly rejected.
The majority opinion in the First Reference indicated the position of the majority at the outset, after having stated the submissions of the provinces. Contrary to the provinces which had submitted that the convention did exist, that it required the agreement of all the provinces and that the second question in the Manitoba and Newfoundland References should be answered in the affirmative, counsel for Saskatchewan had also submitted that the question be answered in the affirmative, but on a different basis:
He submitted that the convention does exist and requires a measure of provincial agreement. Counsel for Saskatchewan further submitted that the Resolution before the Court has not received a sufficient measure of provincial consent.
We wish to indicate at the outset that we find ourselves in agreement with the submissions made on this issue by counsel for Saskatchewan.
(First Reference, at p. 886)
At page 888, the majority opinion held that precedents and usage did not suffice to establish a convention, that they had to be normative and be founded on acceptance by the actors in the precedents. The majority went on to make the following statements:
At page 894:
Indeed, if the precedents stood alone, it might be argued that unanimity is required.
At page 901:
It seems clear that while the precedents taken alone point at unanimity, the unanimity principle cannot be said to have been accepted by all the actors in the precedents.
At page 904:
We have also indicated that while the precedents point at unanimity, it does not appear that all the actors in the precedents have accepted the unanimity rule as a binding one.
It necessarily follows that, in the opinion of the majority, one essential requirement for establishing a conventional rule of unanimity was missing. This requirement was acceptance by all the actors in the precedents. Accordingly, there existed no such convention.
At page 905 of the First Reference, the majority decided that “a substantial degree of provincial consent” was required. A “substantial degree of provincial consent” means less than unanimity. This is what the dissenting judges understood that the majority was deciding: the dissenting opinion contains the following statement at p. 856:
For the Court to postulate some other convention requiring less than unanimous provincial consent to constitutional amendments would be to go beyond the terms of the References and in so doing to answer a question not posed in the References:
The dissenting opinion was based on the understanding of the dissenting judges that the constitutional questions relating to conventions meant the consent of all the provinces. The dissenting judges held that there existed no convention requiring any such consent.
This Court was therefore unanimous in the First Reference in rejecting the conventional rule of unanimity.
The appellant advanced no compelling reason why this unanimous opinion should be modified.
The appellant did quote a passage from the notes released to the Press for a speech delivered by the Minister of Justice, the Honourable Guy
Favreau, on November 20, 1964. The notes have been published under the title “Constitutional Amendment in a Canadian Canada” in (1966-67) 12 McGill L.J. 384. The passage is to be found at pp. 388-89:
…the procedure does not impose any legal constraint that thwarts the traditional forces of constitutional change; on the contrary, it mirrors these forces with utter realism. In the past, Ottawa has never amended the Constitution on matters touching essential provincial rights (as defined in clause 2 of the formula) without the consent of all the provinces. Given the current—and I think, fruitful—resurgence of provincial initiative, a change in this convention becomes inconceivable. However much some people may regret this convention, it remains an undeniable political reality. The formula does not invent that reality; it merely acknowledges it.
The appellant also quoted the following passage of the White Paper published in February 1965 under the authority of Minister Favreau, entitled “The Amendment of the Constitution of Canada”, (the White Paper) at pp. 46-47:
It may be argued that a requirement of unanimity is too inflexible to be applied to the distribution of legislative powers, but this distribution is basic to the Canadian federation. In fact, in the 97 years that have elapsed since Confederation, no amendment has altered the powers of provincial legislatures under section 92 of the British America Act without the consent of all the provinces.
This clearly reflects a basic and historic fact in Canadian constitutional affairs. The Constitution cannot be changed in a way that might deprive provinces of their legislative powers unless they consent. The law has not said so, but the facts of national life have imposed the unanimity requirement, and experience since Confederation has established it as a convention that a government or Parliament would disregard at its peril. This experience is reflected in the formula worked out in 1960-61 and now proposed.
In the First Reference, counsel had not relied on these extracts which, in appellant’s submission, nonetheless amounted to a recognition of a conventional rule of unanimity.
This is not the case, in our view.
The above quoted statements of Minister Favreau must be read in context. The passage of the White Paper is to be found in chapter V entitled “The Amending Formula: An Appraisal”, under a sub-title which reads “Stability versus Flexibility”.
Chapter V is preceded by chapter II entitled “History of Constitutional Amendment in Canada” the fourth sub-title of which reads “Procedures Followed in the Past in Securing Amendments to the British North America Act”. Substantial parts of the text written under this last subtitle were quoted, analysed and relied upon by the majority opinion in the First Reference, at pp. 898 and 899. They include the following at pp. 10 and 11 of the White Paper:
The procedures for amending a constitution are normally a fundamental part of the laws and conventions by which a country is governed. This is particularly true if the constitution is embodied in a formal document, as is the case in such federal states as Australia, the United States and Switzerland. In these countries, the amending process forms an important part of their constitutional law.
In this respect, Canada has been in a unique constitutional position. Not only did the British North America Act not provide for its amendment by Canadian legislative authority, except to the extent outlined at the beginning of this chapter, but it also left Canada without any clearly defined procedure for securing constitutional amendments from the British Parliament. As a result, procedures have varied from time to time, with recurring controversies and doubts over the conditions under which various provisions of the Constitution should be amended.
Certain rules and principles relating to amending procedures have nevertheless developed over the years. They have emerged from the practices and procedures employed in securing various amendments to the British North America Act since 1867. Though not constitutionally binding in any strict sense, they have come to be recognized and accepted in practice as part of the amendment process in Canada.
In order to trace and describe the manner in which these rules and principles have developed, the approaches used to secure amendments through the Parlia-
ment of the United Kingdom over the past 97 years are described in the following paragraphs. Not all the amendments are included in this review, but only those that have contributed to the development of accepted constitutional rules and principles.
There follows a list of fourteen constitutional amendments thought to “have contributed to the development of accepted constitutional rules and principles”. The White Paper then goes on to state these principles, at p. 15, in the form of a code composed of four conventional rules the fourth of which is the only relevant one:
The fourth general principle is that the Canadian Parliament will not request an amendment 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.
The statement written at p. 47 of the White Paper to the effect that
…the facts of national life have imposed the unanimity requirement, and experience since Confederation has established it as a convention…
cannot be reconciled with the last sentence of the fourth general principle:
The nature and the degree of provincial participation in the amending process, however, have not lent themselves to easy definition.
If unanimity had been established as a convention, the nature and degree of provincial participation in the amending process would have been fully defined.
In our view, the fourth general principle is to be preferred as an accurate statement of the rule. It is expressed as a part of a conventional code in a chapter which constitutes a detached analysis of historical precedents.
By contrast, the statement made at pp. 46 and 47 of the White Paper is an apology or a plea in favour of an amending formula which had come under attack as being too rigid. It is not an
authoritative statement of the rule. The same can be said of the above quoted statement made by Minister Favreau on November 20, 1964 which, incidentally, is part of a chapter entitled “The Formula Defended”.
That some of the actors in the precedents had accepted the rule of unanimity is not doubted and was recognized by this Court in the majority opinion at p. 904 of the First Reference. But this is not enough. Other important actors declined to accept the unanimity rule, as indicated in the majority opinion at p. 902 of the First Reference.
The opinion expressed in the First Reference that there existed no conventional rule of unanimity should be re-affirmed.
VI—Whether Quebec has a conventional power of veto
It has already been indicated, with respect to the precedents which are said to establish the conventional rule of a power of veto for Quebec, that the appellant relied upon those which had been invoked by the majority opinion in the First Reference, at pp. 891 to 894.
The reason advanced by the appellant for the existence of a conventional rule of a power of veto for Quebec is the principle of duality, this principle being however understood in a special sense.
The expression “Canadian duality” is frequently used to refer to the two larger linguistic groups in Canada and to the constitutional protection afforded to the official languages by provisions such as s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870.
Counsel for the appellant characterized this aspect of the Canadian duality as the “federal” aspect and recognized that the central government had a role to play in this respect within the framework of federal institutions as well as outside Quebec. But he also made it clear that what he meant by the principle of duality embraced much more than linguistic or cultural differences. What was meant by the principle of duality was what
counsel called its “Quebec” aspect which he defined more precisely in his factum at pp. 8 and 16:
[TRANSLATION] In the context of this reference, the word “duality” covers all the circumstances that have contributed to making Quebec a distinct society, since the foundation of Canada and long before, and the range of guarantees that were made to Quebec in 1867, as a province which the Task Force on Canadian Unity has described as “the stronghold of the French-Canadian people” and the “living heart of the French presence in North America”. These circumstances and these guarantees extend far beyond matters of language and culture alone: the protection of the British North America Act was extended to all aspects of Quebec society—language, certainly, but also the society’s values, its law, religion, education, territory, natural resources, government and the sovereignty of its legislative assembly over everything which was at the time of a “local” nature.
In 1867, the French Canadian minority became a majority within the Quebec Legislature. This is what accounts for the special nature of this province, and it is the reason underlying the convention that the powers of its Legislature cannot be reduced without consent.
One finds another expression of the principle of duality understood in this sense in the preamble of the above quoted Decree No. 3367-81, dated December 9, 1981, the fourth paragraph of which states in concise terms:
[TRANSLATION] WHEREAS Quebec forms a distinct society within the Canadian federation;
Another more elaborate expression of the principle of duality understood in the special sense urged by counsel for the appellant is to be found in a resolution passed by the Quebec National Assembly on December 1, 1981, and more particularly in condition no. 1 of the Resolution:
[TRANSLATION] …that the National Assembly of Quebec, having in mind the right of the people of Quebec to self-determination and exercising its historical right to be a party to and approve any change in the Constitution of Canada which might affect the rights and powers of Quebec, states that it cannot approve the proposal to patriate the constitution unless it includes the following conditions:
“1. It shall be recognized that the two founding people of Canada are fundamentally equal, and that within the Canadian federation Quebec forms a society distinct by its language, culture and institutions, one which possesses all the attributes of a distinct national community;
“2. The constitutional amending formula:
a) shall either preserve Quebec’s right of veto, or
b) shall be the one approved in the constitutional agreement signed by Quebec on April 16, 1981, affirming the right of Quebec not to have imposed on it any change which would reduce its powers or rights, and if such a reduction were to take place, to be given reasonable compensation as a matter of right;
These then are the precedents and the reason for the rule, according to counsel for the appellant.
It will not be necessary in our view to look further into these matters because this submission must in any event be rejected, the appellant having failed completely to demonstrate compliance with the most important requirement for establishing a convention, that is, acceptance or recognition by the actors in the precedents.
We have been referred to an abundance of material, speeches made in the course of parliamentary debates, reports of royal commissions, opinions of historians, political scientists, constitutional experts which endorse in one way or another the principle of duality within the meaning assigned to it by the appellant, and there can be no doubt that many Canadian statesmen, politicians and experts favoured this principle.
But neither in his factum nor in oral argument did counsel for the appellant quote a single statement made by any representative of the federal authorities recognizing either explicitly or by necessary implication that Quebec had a conventional power of veto over certain types of constitutional amendments. The statement made by Minister Favreau on November 20, 1964, and the passage to be found at pp. 46 and 47 of the White Paper have been quoted twice in the appellant’s factum, as if they supported the veto rule as well
as the unanimity one, but they refer only to unanimity and have been above dealt with in this respect.
Furthermore, a convention such as the one now asserted by Quebec would have to be recognized by other provinces. We have not been referred to and we are not aware of any statement by the actors in any of the other provinces acknowledging such a convention. Not only have we not been given any evidence of the acquiescence of other provinces but in the First Reference, three of them, Manitoba, Prince Edward Island and Alberta, explicitly pleaded in favour of the unanimity rule in their factums, a position compatible only with the principle of equality among the provinces and incompatible with a special power of veto for Quebec. It should also be noted that in the First Reference, Ontario and New Brunswick had taken the position that the constitutional amending process was not regulated by conventions involving the provinces.
In order to make up for these fundamental flaws in his submission, counsel for the appellant argued as follows in his factum:
[TRANSLATION] In the opinion of the Attorney General, custom and a reason suffice by themselves to establish the normative nature of the rule.
Counsel for the appellant also referred to Sir Ivor Jennings’ test, adopted by this Court in the First Reference, and more particularly to the last part of this test:
A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.
As we understand it, the contention was that recognition by the actors in the precedents is not an absolutely essential requirement for establishing a convention and that the last part of Jennings’ test is an authority for that proposition.
This contention is based on two sentences taken out of context and is an over-simplified and
erroneous view of Jennings’ test. In these two sentences, Jennings is merely expanding on what he said in the sentence immediately preceding them about the three requirements and illustrating the interrelation between them. He is not doing away with the requirement that the actors in the precedents believe that they were bound by a rule. Indeed Jennings insists in several passages of his book, The Law and the Constitution, that recognition or acquiescence is an essential ingredient of constitutional conventions. Thus he writes, at p. 81:
“Convention” implies some form of agreement, whether expressed or implied…
And at page 117:
The conventions are like most fundamental rules of any constitution in that they rest essentially upon general acquiescence.
And at page 135:
…if the authority itself and those connected with it believe that they ought to do so, then the convention does exist. This is the ordinary rule applied to customary law. Practice alone is not enough. It must be normative.
In the First Reference, at pp. 852, 857 and 883, these views were approved by all the members of this Court who adopted the definition of convention given by Freedman, C.J.M. in the Manitoba Reference, including, at p. 883, the following quotation of Hogg, Constitutional Law of Canada (1977), at p. 9:
a convention is a rule which is regarded as obligatory by the officials to whom it applies.
Recognition by the actors in the precedents is not only an essential element of conventions. In our opinion, it is the most important element since it is the normative one, the formal one which enables us unmistakably to distinguish a constitutional rule from a rule of convenience or from political expediency.
Counsel for the appellant also contended in reply that recognition by the actors in the precedents need not be explicit, and this contention appears to be supported by the following statement of Jennings already quoted above:
“Convention” implies some form of agreement, whether expressed or implied…
Again, Jennings’ assertion must be qualified. Some conventions have been formulated in writing, for instance in the Reports of Imperial Conferences or in the preamble of the Statute of Westminster, 1931. Such conventions can be said to have been expressly agreed upon in authoritative or official form.
The majority of constitutional conventions however have not so been reduced to writing. Does this mean that they are based on implied agreements strictly so-called in that they have never been the object of any form of utterance? We do not think so.
Conventions are commonly asserted or claimed by some political actors in more or less informal statements, while the other actors similarly acknowledge them in principle if not always in their application to particular facts. Conventions are analysed, dissected, commented upon and sometimes criticized albeit not to the point of rejection. But, in our view, a convention could not have remained wholly inarticulate, except perhaps at the inchoate stage when it has not yet been accepted as a binding rule. We know of no example of a convention being born while remaining completely unspoken, and none was cited to us. It seems to us that the contention of appellant’s counsel to the effect that conventions need not be explicitly accepted is impossible to distinguish in practice from a denial of the requirement of acceptance by the actors in the precedents. It is precisely through reported statements by numerous actors that a convention could be identified in the First Reference. Such statements provide the only true test of recognition and, once again, unmistakably to distinguish a constitutional rule from a rule of convenience or from political expediency.
In our view, the Quebec Court of Appeal was correct in holding that the appellant had failed to establish that Quebec had a conventional power of
veto over constitutional amendments such as those in issue in the present Reference.
For these reasons, we would answer “No” to the constitutional question, and we would dismiss the appeal. There should be no order as to costs.
The answer to the question submitted is “No”. The appeal should be dismissed.
Solicitors for the appellant: Jean-K. Samson, Lucien Bouchard and Paul-Arthur Gendreau, Sainte-Foy.
Solicitors for the respondent: Raynold Langlois and Michel Robert, Montreal.
Solicitors for the intervener the Association canadienne-française de l’Ontario: De Grandpré, Colas & Associés, Montreal.
Solicitors for the intervener The Grand Council of the Crees (of Quebec): O’Reilly & Grodinsky, Montreal.