Document Information

Date: 1982
By: Supreme Court of Canada, Attorney General of Canada, Canada
Citation: Factum of the Attorney General of Canada in Re the Reference to the Court of Appeal Concerning the Constitution of Canada, Supreme Court of Canada (1981).
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IN THE

Supreme Court of Canada

ON APPEAL FROM THE COURT OF APPEAL OF THE PROVINCE OF QUEBEC

IN RE THE REFERENCE TO THE COURT OF APPEAL CONCERNING THE CONSTITUTION OF CANADA

FACTUM OF ‘I’HE ATTORNEY GENERAL OF CANADA

Me JEAN-K. SAMSON

Me LUCIEN BOUCHARD

Me PAUL-ARTHUR GENDREAU

Attorneys for Attorney General of Quebec

1200 route de l’Eglise St-Foy, Quebec

Me RAYNOLD LANGLOIS

Me MICHEL ROBERT

Attorneys for Attorney General of Canada

127 St-Pierre St. Montreal, Quebec

NOEL DECARY AUBRY & ASSOCIATES

Agents in Ottawa

95 Victoria St. Hull, Quebec

Me ROGER TASSE

Deputy Attorney General of Canada

Department of Justice Ottawa, Ontario

IN THE

Supreme Court of Canada

Me EMILE COLAS

DE GRANDPRE COLAS & ASSOCIATES

Attorneys for Intervenant Association Canadienne-Française de l’Ontario

Me JAMES O’REILLY

O’REILLY & GRODINSKY

Attorneys for Intervenant The Grand Council of the Crees (of Quebec)

245 St-Jacques St. 4th Floor Montreal, Quebec

NOEL DECARY AUBRY & ASSOCIATES

Agents in Ottawa

95 Victoria St. Hull, Quebec

MATTAR MENCZER SAVAGE

FRASER & FALSETTO

Agents in Ottawa

325 Dalhousie St. Suite 900 Ottawa, Canada

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PART I

THE FACTS

1. On December 9, 1981 the Government of Quebec submitted to the Court of Appeal for consideration hearing the question set forth in Decree No 3367-81 (see Appeal Book, p. 3), pursuant to the Court of Appeal Reference Act, RSQ 1977, c R-23 (see A.B. 2).

2. On December 8, 1981 the National Assembly adopted the Act respecting a reference to the Court of Appeal (SQ 1981, c 17), assented to on December 8, 1981, authorizing an appeal to this Court from the certified opinion furnished by the Court of Appeal to the Government of Quebec in the Reference at bar (see Appendix 1).

3. The Court of Appeal heard counsel March 15, 16 and 17, 1982 and on April 7, 1982 rendered its opinion on the questions submitted by the Government of Quebec. (see A.B. 27).

4. The Attorney General of Quebec appealed to this Court on April 13, 1982. (see A.B. 11).

5. In order to determine the true purpose of second Reference by the Government of Quebec on the question of patriation of the Constitution, the Attorney General of

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Canada submits that it must be placed in a broader factual context than that outlined by the Attorney General of Quebec.

6. On June 9, 1980 the Prime Minister of Canada and his provincial counterparts agreed on the importance of resuming the constitutional reform process. They agreed at that time on a priority agenda containing a number of subjects relating primarily to the distribution of legislative powers, the patriation of the Constitution of Canada, the amending formula and the entrenchment of a Charter of Rights.

Once this agenda had been established, Federal-Provincial Conferences were held in the summer of 1980, culminating in a First Ministers’ Conference which took place from September 8 to 13, 1980. Th is Conference confirmed once again the inability of Canadian political leaders to agree on the procedure for patriating the Constitution, a process that had already taken fifty-four years.

7. In face of this deadlock, the Government of Canada decided to ask the House of Commons and the Senate to begin the process of patriating the Constitution of Canada including in it a Charter of Rights and a procedure for

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adopting an amending formula. Consequently, on October 2, 1980 the Minister of Justice of Canada tabled in the House of Commons a proposed Resolution addressed to Her Majesty asking that the legislation necessary for this purpose be adopted by the United Kingdom Parliament.

8. Only Ontario and New Brunswick supported this initiative.

9. Seven provinces, namely Quebec, Nova Scotia, Manitoba, British Columbia, Prince Edward Island, Alberta and Newfoundland initiated a series of measures to block the federal action, including three court References brought by Manitoba, Newfoundland and Quebec. These References asked the courts to review the constitutionality of the federal initiative.

These provinces argued in each Reference that the consent of all the provinces was necessary both by law and convention as a condition precedent to a Canadian request for an amendment to the Constitution of Canada, as proposed in the Resolution then being debated in the House of Commons.

The Attorney General of Canada intervened in these References in support of the opposite argument.

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10. While the References were proceeding, the proposed Resolution was debated in the House of Commons, where it was supported by the Government and by the New Democratic Party, but opposed by the official Opposition. The proposed Resolution was also referred to a Parliamentary Committee, which heard testimony from an impressive number of individuals and organizations as to the content and the merits of the proposal.

11. The opinions rendered by the three appellate courts were appealed to this Court. Eight provinces appeared asking this Court to rule that the federal action was illegal or at least unconstitutional: the opposing argument was supported by Canada, Ontario and New Brunswick.

12. On April 8, 1981 the House of Commons unanimously decided to await the decision of this Court on the appeals brought from the opinions rendered by before adopting the Resolution (see Appendix 2), but not before agreeing to amend it prior to suspending debate (see the text of the amended Resolution in Appendix 3).

13. On April 16, 1981 eight Provinces which the federal initiative held a Conference of First Ministers (see Appendix 4), and the latter announced that they had

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signed an agreement on a patriation proposal accompanied by an amending formula, though for the time being rejecting any entrenchment of a Charter of Rights. They then proposed to the Government of Canada that it withdraw its proposal and substitute their own (see Appendix 5).

14. On April 28, 29 and 30 and May 1 and 4, 1981 this Court heard the three appeals in succession. On September 28, 1981 this court rendered a judgment relating to the appeals brought in the three References ((1981) 39 NR 1, hereinafter referred to as the Manitoba Reference). This judgment confirmed the legal authority of the two federal Houses of Parliament to adopt the Resolution proposed by the Government of Canada without the consent of the provinces. Nonetheless, the Court also recognized the existence of a constitutional convention to the effect that such an initiative should be preceded by a substantial degree of provincial consent.

15. In view of the opinion of this Court on the conventional aspect of the federal initiative, the Government of Canada agreed to the holding of a Constitutional Conference to seek consent to patriation of Canada’s Constitution accompanied by a Charter of Rights and an amending formula. This Conference was held from November 2 to 5, 1981. On November

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5, 1981 nine provinces and Canada signed an agreement to this effect, Quebec being the only remaining dissenting province (see Appendix 6).

16. In order to reach this agreement on November 5, 1981 the signatory political leaders made mutual concessions. In essence, the compromise of November 5, 1981 meant that Canada, Ontario and New Brunswick accepted an amending formula reflecting almost exactly the Agreement of April 16, 1981 signed by the eight dissenting provinces, and that the latter agreed to the entrenchment of a Charter of Rights. Quebec refused to subscribe to this.

17. On November 18, 1981 the Minister of Justice of Canada tabled a new proposed Resolution reflecting the agreement of November 5, 1981 (see Appendix 7). This Resolution was debated in the House of Commons and the senate from November 20 to December 8, 1981. Before and after the Resolution was tabled, both the Government of Canada and the opposition parties urged the Government of Quebec to subscribe to the agreement, but it refused to do so although the new Resolution included additional modifications, not included in the November 5th agreement, to which the nine signatory provinces had consented to make it even more acceptable to the Government of Quebec.

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The two federal Houses then adopted the amended Resolution: on December 2, 1981 in the House of Commons, and on December 8, 1981 in the Senate. This Resolution was supported by a large majority of all political parties represented in the two Houses of Parliament (see Appendices 8 and 9).

18. On December 8, 1981 the Governor General of Canada received the text of the Resolution as adopted, the pursuant to the advice of Her Majesty’s Privy Council for Canada, His Excellency transmitted this Resolution to Her Majesty on December 9, 1981.

19. On December 22, 1981 the Government of the United Kingdom tabled a bill known as “A Bill to Give Effect to a Request of the Senate and House of Commons of Canada” in the United Kingdom Parliament in accordance with this request. This bill was passed on March 25, 1982 and received royal assent on March 29, 1982 (see Appendix 10). The Canada Act 1982 came into force on that date.

20. On April 17, 1982 the Constitution Act, 1982 was proclaimed in force by the Queen under the Great Seal of Canada. Consequently, this Act has been in force since that time.

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21. The Attorney General of Canada submits that this Court should consider the question submitted in light of all these facts.

[…]

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1- Act respecting a reference to the Court of Appeal, S.Q. 1981, c. 17.

2- Special Order of April 8, 1981 by the House of Commons to dispose of the debate on the constitutional Resolution.

3- Text of Proposed Constitutional Resolution submitted to the Supreme Court of Canada.

4- Transcript of the Conference of Provincial First Ministers held in Ottawa on April 16, 1981.

5- Constitutional Accord – Canadian Patriation Plan, April 16, 1981: news release and explanatory notes.

6- Transcript of Federal-Provincial First Ministers’ Conference on the Constitution, Ottawa, from November 2-5, 1981, and agreement by ten First Ministers dated November 5, 1981.

7- Notice of motion given by the Minister of Justice on November 18, 1981.

8- Text of a Resolution concerning the Constitution of Canada, adopted by the House of Commons on December 2, 1981, and record of vote.

9- Text of a Resolution concerning the Constitution of Canada, adopted by the Senate on December 8, 1981, and record of vote.

10- An Act to Give Effect to a Request by the Senate and House of Commons of Canada.

11- Motion adopted by the National Assembly on December 1, 1981.

12- Government of Quebec Decree No 3214-81, dated November 25, 1981.

13- Government of Quebec Decree No 3215-81, dated November 25, 1981.

14- Letter from the Premier of British Columbia to the Prime Minister of Canada, dated October 14, 1981.