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KembaraXtra – Case Law -Reference Re Amendment of the Constitution of Canada (1982)
This case revolves around Canada's efforts to "patriate" its constitution – gaining control over constitutional amendments without UK Parliament involvement.
I. Background:
Can the Canadian federal government amend the Constitution without provincial consent, even if several provinces object?
III. Manitoba's Argument:
The Attorney General of Manitoba argued:
This case revolves around Canada's efforts to "patriate" its constitution – gaining control over constitutional amendments without UK Parliament involvement.
I. Background:
- Pre-1982: The British North America Act 1867 (BNA Act) governed Canada. Amendments required UK Parliament action.
- Patriation Goal: Canada aimed to create a domestic amendment process, ending reliance on the UK. This required a final amending act by the UK Parliament.
- Constitutional Convention: An unwritten rule (convention) existed: amendments affecting the federal-provincial relationship needed substantial provincial consent before being presented to the UK. This convention aimed to protect the federal structure of Canada.
Can the Canadian federal government amend the Constitution without provincial consent, even if several provinces object?
III. Manitoba's Argument:
The Attorney General of Manitoba argued:
- The proposed amendment violated the existing constitutional convention requiring substantial provincial support.
- Conventions can solidify into legally binding law ("crystallise into law").
- Therefore, the federal government's action was illegal.
- Convention Acknowledged: The court accepted the existence of the convention. The Jennings test (not detailed here, but implying evidence of precedent, political actors' behavior and rationale) supported this. There was a clear history of provincial consent being sought, ministers acknowledging its importance, and a justifiable reason for the convention (protecting federalism).
- Convention Not Legally Binding: Crucially, the court ruled that this convention, despite its importance and widespread acceptance, was not legally enforceable. It had not "crystallised into law." The convention was a political, not a legal, constraint.
- Constitutional Convention: An unwritten rule of constitutional practice; not legally enforceable but crucial for the functioning of the political system.
- Patriation: The process of transferring constitutional authority from a foreign power (UK) to
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