Download Reference Re Resolution to Amend the Constitution of Canada (1981)

Reference Re Resolution to
Amend the Constitution of
Canada (1981)
The Constitution of Canada = the Law +
Conventions (Dicey)
Constitutional Law = Statutory +
Common Law rules
Constitutional Conventions
 unwritten social rules
 based on non-judicial custom and
precedent;
 regulate activities of parts of the
state B e.g. executive,
legislative and judicial branches
 sometimes reduced to written
word
 not enforceable by Courts
 no Aformal@ legal sanctions for
breach
 usually political sanction (e.g.
removal of GG from
office)
 generally circumscribe Awide
powers, discretions and rights
which conventions prescribe
should be exercised only in a
certain limited manner, if at
all.@
“The main purpose of constitutional
conventions is to ensure that the legal
framework of the constitution will be
operated in accordance with the
prevailing constitutional values or
principles of the period.”
“…while they are not laws, some
conventions are more important than
some laws. Their importance depends
on that of the value or principles
which they are meant to safeguard.”
Questions: (1) Was it unconstitutional for
Trudeau government to request the UK
parliament to Apatriate@ the Constitution of
Canada without provincial assent?
(2) If provincial assent required, was
unanimous assent required?
Answers: (1) Yes, according to
constitutional convention, but
not constitutional law.
(2) Unanimous assent not required, but Aa
substantial measure@ of provincial
assent required.