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was that an amendment would not be made by the United Kingdom on the request of a province.

It was the fourth principle which has proven to be so controversial.  Mr. Favreau’s fourth principle was that,

… the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces.  This principle did not emerge as early as others but since 1907, and particularly since 1930, has gained increasing recognition and acceptance.  The nature and the degree of provincial participation in the amending process, however, have not lent themselves to easy definition. ¹⁰

Even though the principle was hedged about with a number of qualifications, it went farther than the historical evidence would justify in suggesting a practice requiring “prior consultation” and “agreement with the provinces” with respect to all amendments “affecting federal-provincial relationships”.  Who was to say what was an amendment “affecting federal-provincial relationships”?  This interpretation of history, while it may have helped to make many people comfortable with the Fulton-Favreau Formula, helped to close the first century of Confederation on a provincialist note.  Even though it did not sell the Fulton-Favreau Formula, the Fourth Principle came back to haunt the Government of Canada and its lawyers in recent years.  When we argued in the Senate Reference in 1979 that the Parliament of Canada had the power to abolish or substantially alter the Senate of Canada, Favreau’s Fourth Principle was cited by the Supreme Court as evidence that amendments “affecting federal-provincial relationships” — and they thought Senate Reform was one of these — could not be made without the agreement of the provinces.  Mr. Favreau’s words of 1965 were used by the Court as evidence of the intention of the United Kingdom Parliament in 1949 when it assigned to the Federal Parliament certain powers of constitutional amendment. ¹¹  Again in 1981, in the Patriation Reference, six judges of the Supreme Court who found that the patriation process being used by the Federal Government was “unconstitutional” used Favreau’s Fourth Principle as evidence of an established convention requiring provincial consent for constitutional amendments. ¹²  Needless to say, in both these cases counsel for the provinces which were opposing federal initiatives found Mr. Favreau’s statement to be compelling and cited it with enthusiasm to the Supreme Court.  Their enthusiasm, I might add, did not extend to certain other federal publications on the same subject, publications which stated the provincial role more narrowly. ¹³
_____
10. Favreau, The Amendment of the Constitution of Canada (1965) at 15.
11. Re Authority of Parliament in Relation to the Upper House [1980] 1 S.C.R. 54 at 64-5.
12. Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753 at 899-901.
13. See e.g., Lalonde and Basford, The Canadian Constitution and Constitutional Amendment (1978) at 13; Chrétien, The Role of the United Kingdom in the Amendment of the Canadian Constitution (1981) at 9-15.

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