What was the Patriation Reference of 1981?

The Patriation Reference of 1981 (Reference re Resolution to Amend the Constitution, sometimes called Re Resolution to amend the Constitution) was a Supreme Court of Canada decision delivered on September 28, 1981. The Court ruled that the federal government could legally seek British patriation of the Canadian Constitution without provincial consent, but that the constitutional convention required substantial provincial agreement. The decision shaped the November 1981 Kitchen Accord negotiations between Pierre Trudeau and the provinces. The Patriation Reference is one of the most consequential constitutional cases in Canadian history.

The constitutional context was this: after the May 1980 Quebec referendum's No victory, Trudeau had pledged renewed federalism. He introduced a federal patriation package in October 1980 that would patriate the Constitution from Britain, add a Charter of Rights and Freedoms, and entrench an amending formula. Eight of ten provinces (the Gang of Eight, missing Ontario and New Brunswick) opposed the federal package, arguing that constitutional amendments affecting provincial powers required provincial consent. The Gang of Eight referred the question to the courts of Manitoba, Newfoundland, and Quebec.

The provincial courts of appeal split. The Manitoba Court of Appeal ruled (March 3, 1981) that the federal package was both legal and conventional. The Newfoundland Court of Appeal ruled (March 31, 1981) that the federal package was both illegal and unconventional. The Quebec Court of Appeal ruled (April 15, 1981) that the federal package was legal but unconventional. The three reference questions went to the Supreme Court of Canada, which heard arguments April 28 to May 4, 1981 and delivered judgment September 28, 1981.

The Supreme Court divided 7 to 2 on the legality question (ruling the federal package legal) and 6 to 3 on the convention question (ruling that constitutional convention required substantial provincial consent). Convention in Canadian constitutional law is binding politically but not legally enforceable. Justice Bora Laskin wrote that the Court had for the first time decided a constitutional convention question. The Court declined to specify what 'substantial provincial consent' meant in numerical terms but held that consent of two provinces (Ontario and New Brunswick) was insufficient. The decision thus put political pressure on Trudeau to negotiate with the Gang of Eight. The subsequent November 5, 1981 Kitchen Accord negotiations (which produced agreement with nine of ten provinces, excluding Quebec) responded directly to the Supreme Court's convention ruling. The Patriation Reference is a foundational case in Canadian constitutional law, both for its specific outcome and for establishing the Court's role in adjudicating constitutional convention.