British North America Act, 1867  Ordinary Act of UK Parliament  Defined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial Legislatures  Distribution of powers and establishment of jurisdiction – e.g. provinces & education  No bill of rights  Most constitutional questions re: jurisdiction 4/10/20151

2 Some Charter History  Much opposition to idea of adopting a Charter  Revolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial review  Constitutional legality of Trudeau govt’s plan to implement Charter challenged in “Patriation Case”

4/10/20153 Reference Re Resolution to Amend the Constitution of Canada (1981) Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected – provincial & federal govt’s

4/10/20154 British North America Act, 1867 BNA Act  No amending formula  Ordinary act of UK Parliament  Thus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changes  Colonial legacy

4/10/20155 Questions  (1) Was it unconstitutional for Trudeau government to request the UK parliament to “patriate” the Constitution of Canada without provincial assent?  (2) If provincial assent required, was unanimous assent required?

4/10/20156 Answers  Yes, according to constitutional convention, but not constitutional law.  (2) Unanimous assent not required, but “a substantial measure” of provincial assent required

4/10/20157 Reasons for Judgment  The Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey)  Constitutional Law = Statutory & Common Law rules

4/10/20158 Constitutional Conventions  unwritten social rules  based on non-judicial custom and precedent  regulate activities of parts of the state: e.g. executive, legislative and judicial branches  sometimes reduced to written word

4/10/20159 Constitutional Conventions, cont’d  not enforceable by Courts  no formal legal sanctions for breach  usually political sanction (e.g. removal of GG from office) GG from office)  generally circumscribe “wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.”

4/10/ Reasons for Judgment, cont’d  Convention existed requiring assent of provincial govt’s on matter affecting provincial powers  Adding Charter significantly affected provincial powers  Therefore “substantial measure” of provincial assent required

4/10/ Reasons for Judgment, cont’d  SCC did not define “substantial”  Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent

4/10/ Reasons for Judgment, cont’d  Quebec later challenged assumption, but point was moot  Charter already “patriated”

4/10/ Pre-Enactment Concerns Re: Charter of Rights  Substituting Parliamentary supremacy with entrenched rights against gov’t  Judicial review by unelected judges  Unsettles too much settled law  Compromise: Sec 1 & 33