The 1982 Patriation of the Canadian Constitution: Reflections on Continuity and Change

Abstract

I have taken part of the title of this essay from a published lecture by then Professor Jean Beetz which appeared in 1972. The main concern of that lecture was reform of ordinary legislation, but much of what he said could be applied to the long-standing Canadian fascination with reform of the constitution.

As an adviser to the federal government on constitutional matters and later as a judge on the Supreme Court of Canada Jean Beetz was especially well-placed and well-equipped to observe and understand the momentous constitutional reform project represented by the word "patriation". His duties usually required him to focus on legal issues, but that did not prevent him from drawing on the broader perspectives provided by history and literature, politics and theology.

This essay will not be as far-ranging, unfortunately. It will, however, attempt to understand the 1982 patriation in a broad perspective. One of the paradoxes of patriation is that the legal continuity represented by Canada's strict adherence to existing legal procedure (in this case, proceeding via the United Kingdom Parliament at Westminster) is widely assumed to have achieved a break in continuity. No one to my knowledge has argued that the Westminster-based legislative process remains an alternative to the new amendment procedures set out in Part V of the Constitution Act, 1982. How does such a radical change in the ultimate rule of the Canadian legal system square with Canada's respect in 1982 for continuity and the traditional rule of law?

I will argue, first, that there is no point in denying the historical link with the United Kingdom Parliament. It is that link which in and until 1982 accounted in strictly legal terms for the validity of the enacted part of Canada's constitution. At one time, British and other general theories of law and legal system appeared to require that as a matter of logic, a logic often as complicated as theological proofs, the undoubted historical link was also an enduring and essential legal link. Apparently, only revolution could counter this stubborn rule, a solution which clearly suited the American colonies but which had little appeal to twentieth-century Canadians.

How then can we explain or justify the widely-held Canadian assumption that a patriation process routed through the United Kingdom Parliament had successfully amended the constitution, adding to it a new Charter of Rights and Freedoms and a domestic method of making constitutional changes, and had at the same time terminated the link to Westminster? Perhaps there is no definitive explanation. Perhaps in the context of frustrated constitutional reform Canadians could still return to Westminster in order to modify what some see as the straightjacket of the present amending formula. Fortunately there are explanations available which correspond more closely to Canadian understandings of a final and irreversible 1982 patriation process. It seems highly likely that the Supreme Court of Canada would favour such an explanation if ever it were asked to decide the matter, and ideally it would like to do so in a manner which conformed with logic, precedent and common sense.

In this essay I argue that logic does not so much dictate one legal answer as provide a range of coherent alternatives. Regarding the 1982 patriation, the logical problems relate to sovereignty and self-reference. Traditionally in British constitutional theory it was thought that if Parliament were truly sovereign, as was assumed to be the case, it had to be able to legislate on any matter whatever, and, by way of corollary, that no one Parliament could be permitted to bind a future Parliament. On the face of it this meant that even if the United Kingdom Parliament at one time passed a law terminating its power to legislate for Canada, a later gathering of that Parliament could repeal or ignore the earlier law and pass new legislation, and any court which recognized that Parliament's sovereignty would have to take notice.

Other Dominions and former colonies of the British Empire had however apparently succeeded in acquiring legal independence, and, not surprisingly, this phenomenon coincided with a re-evaluation of the traditional theory of parliamentary sovereignty. Perhaps, it was contended, the United Kingdom Parliament could either terminate its power to legislate for a particular territory, thereby abdicating only part of its sovereignty; or perhaps that Parliament could bind a future Parliament as to the manner and form of its legislation, in this case adding the legislature of the newly "independent" country to the definition of "Parliament" were new legislation for that country ever to be required.

Elsewhere in the Commonwealth, these improvements on British constitutional theory seemed to provide an adequate account of an essentially abstract and unlikely legal question, for in any event one could be sure that the courts of the newly independent country would ignore any post-independence legislation emanating from Westminster and intended to apply to that country. But in Canada, it was more difficult to come to that conclusion. When the Supreme Court of Canada in the 1981 Patriation Reference acknowledged that the United Kingdom Parliament's powers to legislate for Canada, preserved by section 7 of the Statute of Westminster, 1931, were unlimited and undiminished, this appeared to endorse the traditional theory of sovereignty and possibly even place in doubt Canadians' expectations of complete legal independence.

A solution to the sovereignty dilemma acceptable to Canadian understandings required that British constitutional theory be reconsidered in the context of more general theories of law and legal systems, and here we encounter the logical problem of self-reference. From a Canadian point of view, the United Kingdom Parliament had always been the ultimate law-making or amending process in its legal system. The Supreme Court of Canada in the Patriation Reference had acknowledged that Westminster's powers were unimpaired, but it had not stated whether that Parliament's powers were sovereign in a "continuing" or "self-embracing" sense. It is possible to view the United Kingdom Parliament -- or any other ultimate amending process in a legal system -- as sovereign in the continuing sense: that is, even where the ultimate process is used to provide for its own replacement in the form of a new process, the older process still prevails. It is also possible to understand this ultimate law-making process in self-embracing terms, meaning that, in the above example, the new process truly replaces the old. In the "continuing" alternative the enactment providing for the new process is subordinate to the amending process; in the "self-embracing" version the enactment providing for the new process acquires its validity from the old process but then replaces and is no longer subordinate to it. Logically, one or the other alternative must apply, but both are coherent.

Accordingly, it is possible on one view to interpret the United Kingdom Parliament's powers in a self- embracing way and therefore to offer a coherent explanation of the irreversible transformation by which Part V of the Constitution Act, 1982 on amendment came to replace Westminster as the ultimate law- making process in the Canadian legal system.

It will also be argued that the true nature of the United Kingdom's sovereignty, though over-worked as a matter of constitutional theory, is still an open question as a matter of law, certainly as a matter of Canadian law. Although some theories of law and legal systems give the impression that the content of the ultimate or basic norm of the legal system must be known at all times, the view preferred here is that the basic norm, otherwise known as the ultimate rule of recognition, may be to some extent uncertain, and that it would be a "formalist error" to assume in advance of judicial determination that its content must be precisely defined. If that is so, then it seems reasonable to assume that until a court comes to pronounce on the matter, the possible interpretations of the ultimate rule of recognition must be in a constant state of evolution, conditioned not just by the stark rules of logic but also by social and political developments in the legal system in question. It is the most natural thing, then, for Canadian legal theory to predict a self-embracing interpretation of the United Kingdom Parliament's powers, even while British theory clings to a version of continuing sovereignty. And it should have been open to the Supreme Court of Canada, at least since 1949 when the Privy Council appeals ended and certainly since 1982, to adopt this distinctly Canadian understanding, regardless of whether it was the view accepted in the United Kingdom and across the Commonwealth.

This argument leads to the prediction that even in the event of severe constitutional paralysis caused in part by a rigid amendment procedure, the Supreme Court of Canada would not be at all bound to recognize "remedial" legislation passed for Canada by the United Kingdom Parliament, even following the request and consent of what had formerly been the appropriate Canadian authority. The Court would be able to argue, with reference to Canadian social and political facts and without offending logic or its own precedents, that in 1982, as a matter of Canadian law, the United Kingdom Parliament replaced itself by Part V of the Constitution Act, 1982 and did so in an irreversible or self-embracing way.

A good number of ideas identified in this introduction require unpacking. I will begin in Part I with a brief history of the Canadian amendment process pre-1982, focussing throughout on Canadian attitudes to the prospect or even the possibility of patriation. I will then consider the trilogy of Supreme Court of Canada cases in the late 1970s and early 1980s in which the Court discussed for the first time the rules regarding the amendment and, eventually, patriation of the Canadian constitution. In Part II, I will deal with the difficulties which are encountered in trying to explain patriation. I will consider British theory on the sovereignty of Parliament as well as more general theory regarding law and legal systems. I will also discuss some new thinking on continuity and change in legal systems, before concluding with an account of the patriation process which relies more heavily on relevant Canadian socio-political factors, while still placing appropriate emphasis on the rule of law.

Keywords: Jean Beetz, patriation, 1982 patriation, historical link with the United Kingdom Parliament, Canada and the UK, sovereignty, patriation reference, Canadian amending process pre-1982, British theory on the sovereignty of Parliament, rule of law