British North America Act, 1867Ordinary Act of UK ParliamentDefined institutions of government, e.g., Senate, Governor General, House of Commons, Provincial LegislaturesDistribution of powers and establishment of jurisdiction e.g. provinces & educationNo bill of rightsMost constitutional questions re: jurisdiction**

**Some Charter HistoryMuch opposition to idea of adopting a CharterRevolutionary idea: Westminster model and parliamentary supremacy replaced with constitutional democracy and judicial reviewConstitutional legality of Trudeau govts plan to implement Charter challenged in Patriation Case

**Reference Re Resolution to Amend the Constitution of Canada (1981)Claim: Patriation unconstitutional owing to lack of consent of all parties whose power affected provincial & federal govts

**British North America Act, 1867 BNA ActNo amending formulaOrdinary act of UK ParliamentThus, no means available to Canada to amend/alter except to make request to UK Parliament to make desired changesColonial legacy

**Questions (1) Was it unconstitutional for Trudeau government to request the UK parliament to patriate the Constitution of Canada without provincial assent?

(2) If provincial assent required, was unanimous assent required?

**AnswersYes, according to constitutional convention, but not constitutional law.

(2) Unanimous assent not required, but a substantial measure of provincial assent required

**Reasons for JudgmentThe Constitution of Canada = Constitutional Law & Constitutional Conventions (Dicey)

Constitutional Law = Statutory & Common Law rules

**Constitutional Conventionsunwritten social rulesbased on non-judicial custom and precedent regulate activities of parts of the state: e.g. executive, legislative and judicial branchessometimes reduced to written word

**Constitutional Conventions, contdnot enforceable by Courts no formal legal sanctions for breachusually political sanction (e.g. removal of GG from office)generally circumscribe wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.

**Reasons for Judgment, contdConvention existed requiring assent of provincial govts on matter affecting provincial powersAdding Charter significantly affected provincial powersTherefore substantial measure of provincial assent required

**Reasons for Judgment, contd

SCC did not define substantial

Trudeau government assumption: assent of all provinces except one satisfied criterion of substantial assent

**Reasons for Judgment, contd

Quebec later challenged assumption, but point was moot Charter already patriated

**Pre-Enactment Concerns Re: Charter of RightsSubstituting Parliamentary supremacy with entrenched rights against govtJudicial review by unelected judges Unsettles too much settled law

Compromise: Sec 1 & 33