Re Amendment of the Constitution of Canada [1981] 125 DLR (3d) 1

The case for judicial opinion before the Supreme Court of Canada was whether there was a legal requirement or mere convention that the provinces had to agree for the Queen to put before the Westminster Parliament a proposal to amend the constitution of Canada.

It was found that actually there was no legal requirement: merely a convention stating that there ought to be at least a “substantial measure” of provincial agreement before such an action was taken.

• The point was made that conventions are valid rules but cannot be legally enforced: political sanction, if any, is required. The court said that conventions are made by institutions to govern themselves (which is why it is right that courts don’t enforce them).

• Similarly the purpose of conventions is to say how one should act within the laws (i.e. saying ok the law says you can do X, but really you ought to voluntarily give up part of your legal right, e.g. ministers are entitled to have outside financial interests and not to register them, but to inspire public confidence it is thought proper that they should) and can therefore sometimes conflict with laws / rights.

The big deal is that the court recognised the existence of a constitutional convention but refused to make it legally enforceable.