Theory regarding the nature of the constitutional arrangements made in British North America in the period of 1864-1867 first propounded forcefully by judge T.J.J. Loranger in his Letters on the Interpretation of the Federal Constitution . The theory states that the federal government, and the federal system, were essentially created by the provinces at the time of Confederation and that, consequently, the provinces are the true source of constitutional authority in Canada. In the Constitutional Act, 1867, the British Parliament would merely have given a legislative stamp to the arrangement set out by the provinces in the various constitutional conferences.
The question raised by those who support or oppose the theory was of prime importance because the Constitution Act, 1867 did not include an amending formula, at least for its essential federalist parts, until the patriation of 1982. Thus, constitutional amendments could only be secured, in many instances, by an appeal to the British Parliament. The important consideration was who could request such amendments ( and consequently control its content)? Was it the government and Parliament of Canada alone or all the governments of Canada together? If the answer was that the government of Canada had the power to act alone, could it do so without consulting the governments of the provinces and without obtaining from them their unanimous consent? Those who rejected the Confederation pact theory claimed that the Constitution Act that Canada uses as its prime constitutional document is a simple statute of the Parliament of Great Britain. According to the opponents to the theory, the Constitution Act could only be modified by the Parliament which can speak for the whole of Canada, the federal Parliament. The federal Parliament is assumed here to have taken over the responsibilities that were those of the British Parliament prior to 1931.
Those who supported the pact theory, claimed that the Constitution Act, 1867, was not only a simple British statute but more fundamentally a political treaty, a pact, entered into by the provinces of their own free will and under conditions which cannot be altered (constitutional amendments) without their consent. There was an implicit claim on the part of those who supported the theory that the provinces were the constituting parties in 1867 and that the federal government was their creation and was, as a result, in a somewhat subordinate state to the provinces.
Some proponents of the Confederation pact extended it to a further meaning: the Constitution Act would have constituted a solemn pact or treaty entered freely into by Canada's two people guaranteeing their absolute equality in Canada.
The pact theory received support from the Supreme Court of Canada in the reference case regarding the Trudeau attempt to unilaterally amend and patriate the constitution in 1981. By a 6-3 vote, the Court held that there was a Convention of the Constitution that the federal government had to seek and obtain substantial support from the provinces to go ahead with its request for the changes that it proposed to make to the Canadian constitution. In consequence, Trudeau called for a new round of negotiations with the provinces. This resulted in the Constitution Act, 1982. There are now clear rules governing the amendment of the constitution of Canada.
© 2001 Claude Bélanger, Marianopolis College