'The Question Calls for an Answer, and I Propose to Answer it': The Patriation Reference as Constitutional Method
The Supreme Court Law Review, Vol. 54, No. 2d, p. 143, 2011
24 Pages Posted: 6 Feb 2012
Date Written: July 1, 2011
The 30th anniversary of the Reference Resolution to Amend the Constitution is an opportunity to reflect on Canada’s constitutional tradition. The Reference is of course most famous for articulating a constitutional convention requiring substantial provincial consent for amendments affecting provincial powers; and only slightly less famous for considering a question about conventions at all. Many have criticized it as a political manoeuvre that is neither supportable nor particularly subtle. In this paper I propose to examine the Reference as a paradigmatic example of the reference function. In this way, I hope to evaluate its broader impact on Canadian constitutional law.
The paper proceeds as follows. First, the Patriation Reference is situated in context. While the reference power has an English pedigree, it quickly came to embody very Canadian characteristics. Next, I consider how some of these factors played out in the Court’s opinion. In the final section, I consider questions of legacy. I argue that the Patriation Reference presaged the modern approach to constitutional interpretation. In my view the Reference was highly predictive of broad patterns in constitutional litigation and jurisprudence. In short, the Patriation Reference was a harbinger of the modern constitutional method.
Keywords: constitution, advisory opinion, reference function, separation of powers, Canadian constitution, patriation
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