Dec. 2: The Political Dynamics of
Constitutional Reform 1981-Present
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Senate Reference [Kit, p. 316]
A. Cairns, “Constitutional Change…” [Kit, p. 138]
R. Gibbons, “Shifting Sands…” [Kit, p. 163]
Patriation Reference [Kit, p. 318]
Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378]
Resolution on Recognition of Quebec… [Kit, p. 389]
An Act Respecting Constitutional Amendment [Kit, p. 390]
A Framework to Improve the Social Union… [Kit, p. 392]
Reference re. Secession of Quebec [Kit, p. 337]
Alan Cairns: Constitutional Change and the Three Equalities [Kit, 138]
K. McRoberts, Misconceiving Canada, Chapter 9, “The 1995 Quebec
Referendum” [Kit, p. 151]
P. Hogg, “The Duty to Negotiate” [Kit, p. 178]
Gall, Ch. 13, and Bogart, “The Administrative State and Judicial Review
(182)”
Main Events surrounding Patriation controversy
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Balfour declaration: 1926
Statute of Westminster: 1931
Quiet Revolution: 1960 +
Trudeau becomes PM, 1968
Victoria Charter: 1971
Senate reference: 1979
Quebec referendum: 1980
Negotiations re patriation &
Charter, 1980-81
• Unilateral attempt to patriate
by Trudeau, 1981
• Patriation reference,
1981
• Agreement of Nov. 5,
1981 (Que not inc’d)
• Canada Act signed, April
1982
• Quebec veto ref, 1982
• Meech Lake Acc, 19871990
• Charlottetown Accord,
1992
• Quebec referendum:
1995
Main events (2)
• Resolution on recognition
of Quebec as a Distinct
Society (1995)
• Act respecting
constitutional
amendment, and
resolution to recognize
Quebec as a “distinct
society.” (1996)
• Calgary Declaration
(1997)
• Quebec secession
reference (1998)
• Social Union
Framework
Agreement (1999)
• Clarity Act (2000)
Senate Reference (1979)
• Already discussed in class on cooperative federalism,
Nov. 4/05
• In 1978, the Trudeau government floated a “trial balloon,”
a paper on Senate reform. Possibilities included
abolishing the Senate, or changing it into a “house of the
provinces” where half of the Senators would be chosen
by the provincial legislatures or governments.
• Does Parliament have the ability to change the Senate in
any of these ways? Reference question sent to
Supreme Court.
• Answer by “the court” (Laskin, CJ): No. To change the
Senate is to abolish the current Parliament (H of C,
Senate, Queen) and replace it with a new Parliament.
That requires a constitutional amendment by UK
Parliament [after 1982, through the unanimity formula].
Patriation reference (1981)
• Would the proposed
amendments affect
provincial powers: Yes
(unanimous)
• Is there a convention of
provincial consultation?
– Yes: Martland, Ritchie,
Dickson, Beetz, Chouinard
& Lamer (substantial, not
unanimous)
– No: Laskin, Estey &
McIntyre: No
• Has the convention
hardened into
constitutional law?
– No: Laskin, Dickson,
Beetz, Estey, McIntyre,
Chouinard & Lamer
– Yes: Martland & Ritchie
Alan Cairns: three equalities [Kit, 138]
• Citizens
• Provinces
• Two nations
• Debate over
assymetrical
federalism
• Charter: a constraint
on federalism
• Charter’s popularity in
Quebec
Meech Lake Accord
– Compensation provided for
any province opting out of
any constitional
amenendment under 7-50
formula that transfers prov
powers to Ottawa.
• Meech Lake Accord:
– “distinct society” clause
– “constitutionalize”
immigration agreements
– Provinces submit names
for vacancies to SCC
– Any province can opt out of
a shared cost program in
areas of prov. jurisdiction &
receive compensation if the
province operates a similar
program that meets
“national standards.”
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Additions:
– Senate reform: prov’s
nominate Senators to begin
with
– First ministers conf on
economy annually
– Annual constitutional
conferences to discuss
Senate reform, fisheries
and other matters.
Charlottetown Accord
• Everything in Meech
Lake plus:
– Canada Clause
– Aboriginal rights
strengthened, including
right to negotiate selfgovernment
– Non-justiciable social
charter
– Measures to strengthen s.
121
– Senate reform: 6 elected
senators from each
province, and 1 from each
Territory, plus Aboriginal
representation
– SCC appointments: feds
can appoint if provinces
don’t nominate.
– Guarantee of 25% of seats
in H of C for Quebec
– Prov. authority in areas of
prov. Jurisdiction
strengthened.
– Fed powers of
disallowance and
reservation repealed
– Fed declaratory power
limited; require prov.
consent.
Social Union Framework
Agreement (1999)
• All Canadians are
equal
• Needs must be met
everywhere
• Social programs
should be adequate
and sustainable
• Promote mobility
within Canada
• Public accountability and
transparency
• Evaluate results of
programs
• Participative democracy
• Funding predictability
• Fed-prov consultation,
not unilateral action
Québec Secession Reference
(1998)
• Stéphane Dion
– Critical of “yes” side in
1995 referendum
– Asked by PM to become
Min of Intergovernmental
Affairs in 1996 & context
by-election
– Proponent of “Plan B:” fed
gov’t should be active in
opposing Québec
separatism.
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Guy Bertrand (a former
sovereignist leader in Québec
turned federalist)
– began a litigation process
in which challenged the
Québec government’s
attempts to institute
sovereignty on Charter of
Rights grounds.
– Québec government tried
to block Bertrand’s
challenge, so fed gov’t
continued the litigation
through the reference (part
of “Plan B”)
Québec Secession Reference
(2)
• Argued in Feb, 1998
– Québec gov’t wouldn’t
participate, so SCC
appointed André Joli-Cœur
as amicus curiae.
– Amicus argued that
reference jurisdiction of
SCC is ultra vires.
• Can an appeal court be
given original jurisdiction?
Yes.
• Can an appeal court
advise? In Canada, yes
(despite rule about no
specific mention).
• Justiciability:
– Too theoretical?
– Too political?
– Not ripe?
• Canada does not have
as strict a separation of
powers as U.S.
• Advisory opinion
different from a litigated
case.
Québec Secession Reference
(3)
• Questions:
– 1. Under Can Const, can
Québec secede
unilaterally, without a
constitutional amendment?
– 2. Under Int law, can
Québec secede
unilaterally?
– 3. If conflict between (1)
and (2), which takes
precedence?
• Why did SCC write such
a lengthy judgment?
• 1. Can Québec secede
unilaterally under
constitution?
– Arguments in favour based
on democracy.
– What is democracy?
– Our democracy is based on
shared values, and
unilateral secession puts
these at risk. Thus, duty to
negotiate.
– Was SCC too activist, or
not activist enough re
“clear question” and “clear
majority”?
Québec Secession Reference
(4)
• 2. Does international law
give Québec the right to
secede unilaterlally?
– Amicus: right to selfdetermination belongs to all
“peoples.”
– Do Québeckers constitute
a “people”?
– SCC: not necessary to
decide, because even if
yes, the right only exists
where a “people” is
mistreated.
• right to only arises under
international law where “a
people” is governed as part of
a colonial empire, “is subject to
alien subjugation, domination
or exploitation; and possibly
where ‘a people’ is denied any
meaningful exercise of its right
to self-determination within the
state of which it forms a part.”
Québec Secession Reference
(5)
• Spring of 2000: Bill C-20:
“An Act to give effect to
the requirement for
clarity….”
– Within 30 days of a prov
legislature tabling a
referendum question, H. of
C. must declare whether
question is “clear.”
– If question considered
“clear,” and a majority
votes in favour, H of C
must determine
whether majority is
“clear.” Consider:
• Size of majority
• Proportion voting
• Views of political
parties
• View of Senate
Québec Secession Reference
(6)
• After SCC decision: PQ
gov’t seemed to support
decision.
• Jacques-Yvan Morin
(former Québec
intergovernmental affairs
minister): SCC decision
means feds can’t refuse
to negotiate, but can put
up many obstacles to
Quebec secession.
• Kenneth McRoberts: The
Trudeau strategy for
Canadian unity has
failed.
• Hogg:
– Québec can no longer
claim that it can secede
unilaterally.
– The “duty to negotiate”
secession in face of a
“clear majority” vote in
favour in a province is
unprecedented in world
history.
Gall – last chapter
• New directions:
– Is law the best way to
implement a public policy?
– If so, think about federalism
issues in potential litigation.
What mechanisms are
there for cooperation?
– Technology
• A tool for judges
• Education for lawyers and
judges
• Electronic law library
• Public image of legal
profession
– Public education
– Legal accountability
– Case management, ADR,
mediation
– Legal fees
– Legal insurance
– Continuing education (prof.
Dev. LLM at Osgoode)
– Alternative careers for
lawyers
– Law reform (Canada Law
Commission)
W.A. Bogart, Courts & Country, Ch 4 (The
administrative state and judicial review, kit 182)
• Do courts promote a
fairer society, or act as a
roadblock to
advancement?
– Federal administrative
agencies (eg. CRTC, Hum
Rts Comm): 640.
– Ontario: 36 reg bodies (eg.
Lab rels bd,WSIB – ½
million claims/yr), 44
licensing appeal tribunals,
8 compensation boards, 19
arbitration agencies, 95
advisory boards.
• Leg’s try to keep courts
from supervising admin
agencies too closely.
Why?
• Should courts intervene
in admin trib’s rarely,
when there are clear
issues of fairness?
• Bogart: courts may be
good, at times, in
signaling unfairness, but
are not usually good at
finding solutions.
Review for Exam
• See review notes on web page
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