The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution

The Supreme Court’s decision in the Patriation Reference was a landmark in the jurisprudential analysis of the role of constitutional conventions in the law of the Constitution. The Court’s majority adopted Ivor Jennings’ test for identifying constitutional conventions. The two crucial components of that test are: (1) acceptance by the players involved that they are bound by a rule; and (2) the principle underlying the rule. In the Patriation Reference, applying Jennings’ test, the majority found that there was a constitutional convention requiring a substantial measure of provincial consent for requests by the federal Parliament to the U.K. Parliament to amend Canada’s Constitution in matters affecting provincial powers. That ruling ensured substantial provincial participation in working out the terms on which Canada’s Constitution would be patriated. However, in the subsequent Quebec Veto Reference, the Court ignored the fundamental agreement on which Confederation was based and considerations of principle, and found that there was no constitutional convention requiring Quebec’s consent to amendments affecting its rights and powers. The result was the breaking of the bond of trust on which Canada was founded and frustrating years of mega-constitutional politics