effect against the political legitimacy of any settlement. It also was difficult to foresee what the impact would be at Westminster if we could not comply with the conventions of the constitution as identified by the Court.
The other observation I would make is that once the case was decided, few people seemed to question the political legitimacy of the Supreme Court itself in rendering such a judgment. Although I remain convinced that the provinces’ question which required the Supreme Court to apply a convention of the constitution was really a political question, the politicians, the press, and the public generally accepted the propriety of the Court to decide that question.
Apparently, even the government of Quebec accepts that role for the Court, as it launched another reference ultimately destined there on a further political question as to whether, according to constitutional convention, Quebec has a veto over constitutional amendments no matter what the status of other provinces may be.
The People
Finally, I wish to turn to the role of the people in the constitutional process. The fact is that no one put these specific constitutional proposals directly to the public. I will not speculate on what electoral mandate some of the governments may have had with respect to constitutional reform in general but, to the best of my knowledge, no party ran an election on the question of whether or not it should support these particular constitutional provisions.
Nor were the proposals put to the public in a referendum, and all provisions for the future use of referenda in constitutional amendment were systematically struck out of the proposals at the insistence of the provinces. You will recall that the original resolution put to Parliament in October, 1980 by the federal government contemplated the use of the referendum both as a transitional measure to get a permanent amending formula in place, and also as a possible component of that permanent amending formula. These proposals proved to be very controversial.
It is true that there was some press support for the referendum idea 19 although there were also press critics, particularly in the West.20 It is, perhaps, more interesting to note that of fifty-seven individuals making written submissions to the Joint Parliamentary Committee on the use of referenda, forty-one were in favour and only sixteen were against their use.
19. See, e.g., “People sovereign”, Ottawa Citizen, editorial, Jan. 14, 1981; “There’s no mandate without a referendum”, Ottawa Citizen, editorial, Jan. 21, 1981; “Go to court of opinion”, Ottawa Citizen, editorial, Feb. 4, 1981; “Ce qui manque à la démarche de Pierre Trudeau“, Ottawa Le Droit, editorial, Oct. 17, 1980.
20. See e.g., “The false foundation”, Winnipeg Free Press, editorial, Oct. 3, 1980; “Heart and soul”, Edmonton Journal, Sept. 29, 1981.
