Document Information

Date: 1980-09-29
By: Canada
Citation: Background Paper, Patriation of the British North America Act (29 September 1980).
Other formats: Click here to view the original document (PDF).

^{[Jim Hurley]}

FLE / L. L. Herman / 2-9553 / so

September 29, 1980.

S E C R E T

BACKGROUND PAPER

PATRIATION OF THE BRITISH NORTH AMERICA ACT

A. INTRODUCTION – THE BASICS

Canada’s constitution is the British North America Act of 1867 and the various amendments thereto since that date. There are several other pieces of legislation which also make up Canada’s constitution, but these are minor for the most part and in essence reference to the constitution of Canada is to the British North America Act and its several amendments.

2. The British North America Act is a statute of the United Kingdom Parliament, a so-called Imperial Statute because it was passed by Westminster to have application tb what was then a British colony, Canada. Amendment or repeal of the BNA Act requires legislative action on the part of the U.K. Parliament. Action on the part of the U.K. is necessary however, not simply because the BNA Act is an Imperial Statute, but because the full legislative powers conferred upon the Parliament of Canada and upon the legislatures of the Canadian provinces under the Statute of Westminster, 1931 were especially restricted under section 7 of the Statute. This restriction was inserted at the request of the Canadian delegates at the 1926 and 1930 Imperial Conferences so as to avoid the possibility of the provisions of the several BNA Acts being unilaterally amended, repealed or altered by the Canadian Parliament or by the provincial legislatures as ordinary statutes passed under their enhanced legislative powers conferred upon them by the Statute of Westminster.

3. The formal, legal effect of the foregoing provision is that the Colonial Laws Validity Act, 1865 – by which any colonial law which is repugnant to an Imperial Statute specifically extending to the colony is rendered void and inoperative – is continued in force in respect of the BNA Acts. The result is that at the present time neither the Parliament of Canada nor the legislatures of the several provinces of Canada can pass laws repealing, amending or altering the BNA Act. To do so requires an act of the U.K. Parliament.

B. THE PROCESS OF AMENDING THE BNA ACT

4. Apart from the enactment of the BNA Act itself in 1867, there have been twenty-one enactments by the U.K. Parliament and one Imperial Order in Council (under section 146 of the BNA Act) which constitute amendments or additions to the Canadian Constitution.

5. While only the U.K. Parliament can enact amendments to the BNA Act, it has long been the practice that such enactments can only be made at the request and consent of Canada. This procedure was followed prior to the enactment of the Statute of Westminster, 1931 and constitutional experts agree that the requirement for request and consent has now become enshrined in Canadian constitutional practice as a convention.

6. How is such request and consent manifested? It has become settled constitutional convention that the request for and consent to constitutional amendment by the U.K. Parliament must come from the federal legislative branch in Canada. By the same constitutional convention the federal executive lacks the competence to formulate such a request.

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This rule requiring a request from the Canadian Parliament was originally laid down in 1871 when a joint address was made from both Houses of Parliament in Canada to the British sovereign in order to secure the first amendment to the BNA Act. Although two subsequent amendments – in 1875 and 1895 – were secured on address made by the Canadian executive alone to the Imperial Government, the original practice has been used in all subsequent requests for amendment and it is now settled constitutional convention that the proper procedure is for an address to be made by both Houses of Parliament in Canada.

7. It should be stressed that the convention thus established for securing amendment (as well, it is submitted, for securing repeal or alteration) of the BNA Act requires the concurrence of both Houses of Parliament, a practice which (except for the two lapses in 1875 and 1895) has never been departed from.

8. The basic requirement, therefore, for patriating the Canadian constitution (or for amending, repealing or altering the BNA Act) is for an address requesting a particular amendment to be made by both Houses of Parliament in Canada and presented through appropriate means to the U.K. Parliament. The actual procedure to be employed is for the Federal Government to present a resolution for adoption by the House of Commons and the Senate. The address is formulated as an address to the Sovereign, praying that the appropriate measure be laid before the U.K. Parliament. Once adopted by both Houses, the request is transmitted simultaneously by the Governor General to Her Majesty and by the Government of Canada to the U.K. Government through normal diplomatic channels. Together with the address to Her Majesty from the Canadian Parliament, a bill is also drafted by the Federal Government and included with the address. Since 1930, it has become practice to include in the bill which is sent with the joint address a preamble reciting that the Senate and Commons of Canada in Parliament assembled have submitted an address to the Sovereign praying for the enactment of the provisions thereafter set forth.

9. There is no precise form laid down by constitutional convention for the address to take and it appears to be an open question as to whether the address is a (1) concurrent address by each House or (2) a single joint address by both Houses. In the case of the British North America Act (No. 2) 1949, for example, the procedure of a concurrent address was used.

C. PATRIATION OF THE BNA ACT

10. The amending formula problem has dominated the constitutional debate since the early 1960s, beginning with the development of the “Fulton Formula” and, later, the “Fulton-Favreau Formula”, both of which would have resulted in the amendment of the Canadian Constitution by the U.K. Parliament to incorporate the proposed amending formula. Neither envisaged “patriation” per se, although under each proposal, it would be the Parliament of Canada and not the U.K. Parliament that would have the exclusive power to amend the Canadian Constitution, subject to the provisions of the respective amending formulas where the concurrence of provincial legislatures was required before a federal constitutional amendment law could come into force. Nor did the Victoria Charter of 1971 expressly cover the question of patriation. None of these proposals involved patriation in the sense of making the constitution an autochthonous document, since the power to make laws under the proposed formulae would still flow from an act of the U.K. Parliament.

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S E C R E T

Each of the three foregoing proposals for an amending formula, however, in providing for the power to amend the BNA Act as being exclusively within the competence of the Canadian Parliament in accordance with the proposed amending formula, to this extent also envisaged a form of “patriation” of the Constitution.

11. The 1972 Final Report of the Special Joint Committee of the Senate and of the House of Commons on the Constitution and the 1978 Report of the Committee on the Constitution of the Canadian Bar Association both contain specific recommendations that the Canadian Constitution should be patriated. The 1979 Report of the Task Force on Canadian Unity (Pepin-Robarts) did not formulate specific recommendations regarding patriation, but clearly envisaged the proposals contained in the Report as being embodied in a new Constitution that is entirely Canadian in its legal origin.

12. Patriation per se, in simple terms, involves a procedure, similar to that employed in the case of amendment, whereby:

(a) the various BNA Act and related Imperial enactments are terminated insofar as their application in or to Canada as acts or the U.K. Parliament are concerned;

(b) the U.K. Parliament recognizes the validity of the new Canadian Constitution once proclaimed in force in Canada and renounces all present or future jurisdiction over Canada;

(c) in addition to the foregoing, section 7 of the Statute of Westminster, which preserves the application of the Colonial Laws Validity Act, 1865, insofar as the BNA Acts are concerned, will be repealed; and

(d) a now Canadian constitution, with Canadian legislative origins, is brought into force.

D. PROVINCIAL INVOLVEMENT IN THE CONSTITUTIONAL AMENDING PROCESS

13. By constitutional convention the U.K. Parliament cannot on its own volition enact an amendment to the Canadian Constitution without a formal request from Canada, a request which, as noted above, is directed to the Sovereign on address from both Houses of Parliament. Further, it is clear that by constitutional convention provincial authorities – either executive or legislative – have no locus standi to move the U.K. Government to pass an amendment or to refuse to pass an amendment to the Constitution.¹

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(1) Here it is important to qualify this principle to the following extent: in 1965, the Quebec legislature formulated a request to the Queen requesting that the BNA Act be amended to abolish the Quebec Legislative Council, having failed to secure the passage of the necessary Quebec legislation because of the Legislative Council’s refusal to assent to the abolition legislation. While the address was directed to the Queen, by convention only the Governor General, on advice from the federal Cabinet, could transmit the request to the sovereign. In addition, unless the federal government was agreeable to the British government taking steps to introduce legislation as requested, the British government would not have taken any action on the basis of the Quebec request. In this instance the federal government agreed to the

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The British Government, in accordance with correct constitutional convention will refuse to act on any such provincial requests for constitutional amendment, since to do so in the absence of a request by the federal government would constitute a direct interference in Canadian internal affairs. There have been numerous unilateral provincial requests for constitutional amendment sent to London by the provinces through the Governor General but the U.K. Government has consistently and correctly refused to act on them in the absence of concurrence in the provincial request by the federal government.

14. The first of such requests was made by the Nova Scotia House of Assembly in 1868, requesting the Queen to request Parliament to abolish the BNA Act insofar as it applied to that province. The Governor General forwarded the request to London but the British Government did not, of course, accede to the province’s request. Two attempts by Nova Scotia, in 1879 and 1897, to obtain an amendment to the BNA Act abolishing the Upper House of the Province by direct address to the Queen by the Provincial Assembly were unsuccessful, the British Government refusing to act on them in the absence of a favourable recommendation by the federal government. Several other requests formulated by provincial legislatures were similarly turned down. Thus, an address by the legislature of Ontario (1869), a “complaint” made to London by the B.C. Government (1874), addresses by P.E.I. (in 1877 and 1886), addresses by Ontario, Manitoba, Quebec, Nova Scotia and New Brunswick (following the Interprovincial Conference of 1888) were all forwarded by the federal government to the British Government without comment and consequently were all ignored by the British Government.

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(1)       Cont’d.

the federal government agreed to the Governor General transmitting this provincial request to the Queen as a proper request from a constitutional point of view, concerning purely a matter of concern to the Province and not involving in any manner the legislative powers of the province on the constitutional division of powers as between the federal government and the provinces, and only coming as a result of the Quebec Government’s bona fide inability to obtain concurrence of the Upper House to its own abolition. Eventually the Quebec National Assembly managed to abolish the Legislative Council in 1968 and the address was not acted on by the U.K. Parliament. In fact the U.K. Government delayed action on the Quebec request in order to avoid a parliamentary controversy.

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15. At this point, it is important to emphasize that there are two distinct issues regarding constitutional amendment, including patriation, and the role of the provinces. in the process. The first set of issues concerns the relationship between the Canadian Parliament and the British Parliament. As has been shown, the provinces have no locus standi in the amendment or patriation process insofar as the British Government or Parliament is concerned. The provinces have no right to propose amendments themselves and for the British Government or Parliament to pay heed to provincial views on amendments or patriation as proposed by the Parliament o[ Canada would be a breach of convention and a gross interference in Canadian internal affairs. The British Government and Parliament must be concerned only with a request which comes to them from the Canadian Parliament in accordance with proper constitutional convention. As was correctly stated by the government spokesman in the British House of Commons in 1943 when introducing legislation amending the BNA Act and when asked about ‘the opposition expressed by the Legislative Assembly and the Government of Quebec to the proposed amendment:

“I suggest that it is really improper in the present circumstances for the House to question the discretion of a sovereign Parliament in the Commonwealth of Nations. It is only owing to a technical legislative peculiarity that it comes to the House at all, and it is very improper that the House should question the discretion of a national and absolutely sovereign Parliament.”

Similarly, statements made on behalf of the British Government in the House of Commons on June 10, 1976, and in the House of Lords on July 25, 1979, clearly stated the British Government’s position Lo the effect that if a request for amendment were received from the Canadian Parliament, the British Government would be bound to introduce the measure and the British Parliament would be bound to enact it in compliance with the request.

16. The second set of issues concerns the role of the provinces in the constitutional amendment process as far as internal Canadian constitutional procedures are concerned. Here, it is important to recall that there have been eighteen amendments to the BNA Act adopted by Parliament at Westminster. Of these, only four instances involved the unanimous consent of the provinces: unemployment insurance, 1940; old-age pensions, 1951; retirement age for provincial Superior Court judges, 1960; and the addition of supplementary benefits to old-age pensions, 1964. The Statute of Westminster, 1931 also involved the unanimous consent of the provinces, bringing the total number of cases of unanimous provincial consent to five. The 1907 amendment was objected to by British Columbia, although all the other provinces had given their consent. (The British Government finally agreed to a small amendment to accommodate B.C.) The BNA Act, 1930, transferring resources to the four western provinces, only had the consent of those four provinces. The BNA Act, 1949, confirmed the terms of union between Newfoundland and Canada and had the consent of that province only. None of the other constitutional amendments – in 1868, 1871, 1875, 1896, 1893, 1895, 1915, 1916, 1927, 1946, 1949 (No. 2), and 1950 involved the securing of provincial consent, unanimous or otherwise.

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17. The degree to which the provinces must consent to amendments to the Canadian constitution remains an unsettled issue among constitutional lawyers. The view has often been stated that, in the absence of an amending formula, constitutional convention requires provincial consent—perhaps even unanimous provincial consent—in respect of any constitutional amendments affecting the rights, powers and privileges of the provinces or affecting the distribution of legislative powers as between the Parliament of Canada and the provincial legislatures. Whatever the force of this argument, it remains a matter of internal concern to Canada. The role of the provinces in amending or patriating the constitution can be of no proper concern to either the U.K. Government or the U.K. Parliament. The British Government and Parliament must accept the constitutional validity of a request coming from the Canadian Parliament and not look behind the request or to question it in any manner. To do otherwise would amount to second-guessing the views of a sister parliament within the British Commonwealth and would constitute interference in internal Canadian affairs.

CONCLUSIONS

The present position of the British Government and Parliament in relation to Canada and the Canadian constitution can be briefly summarized as follows:

(a) Canada is a sovereign, independent, fully autonomous state, as recognized by the Statute of Westminster, 1931 and by the subsequent evolution of that independent status in law and practice.

(b) For reasons related to Canada’s situation as a federal state–with both the federal and provincial legislatures enjoying plenary law-making powers within their areas of jurisdiction, as set out in the BNA Act–the power of amending entrenched provisions of the constitution was withheld from the Canadian Parliament and the provincial legislatures under section 7 of the Statute of Westminster, 1931 and the BNA Act, 1949.

(c) The Canadian constitution remains an act of the British Parliament and its entrenched provisions can be amended only by the British Parliament.

(d) However, by constitutional convention and by reason of Canada’s sovereign status:

(i) the British Parliament cannot act to amend the Canadian constitution except when requested to do so by the federal government, normally in a joint address to the Queen by both Canadian Houses of Parliament;

(ii) The British Parliament is bound to act in accordance with a proper request from the federal government and cannot refuse to do so.

(e) The British Parliament or Government may not look behind any federal request for amendment, including a request for patriation of the Canadian constitution.