144 THE ADVOCATE
VOL. 80 PART 1 JANUARY 2022
An interesting footnote is that we had a conversation, off the record, with
the Solicitor General, Sir Ian Percival. Percival is very keen on delay. Any
tactic to delay, at least until we get the judgment from the Supreme Court
of Canada. He made it absolutely clear, without any solicitation on my
part, that he was very concerned about the House being put in the position
in which they should have to consider this matter prior to the judgment
being handed down in the Supreme Court of Canada.”13
THE FINAL TRIP
My third, and final, trip to London took place in April 1981. I was there to
attend a colloquium at All Souls College, Oxford. For someone like me,
quite literally from the provinces, it was an unforgettable experience. As
you may already know, All Souls is a college without any students. The
members of the college are the academic, intellectual elite of Britain, chosen
as members for that very reason. I arrived on a Friday night and was
shown to my room, by coincidence Lord Hailsham’s room.
We met the next day in a concave, medieval room that had once been
Erasmus’s study. I looked around at the 30 or so people in attendance and
recognized many of those assembled—leading politicians, academics and
lawyers. To a man they were all on the side of the provinces. The representative
of the federal argument, Barry Strayer, later a judge in the Federal
Court of Appeal, had a terrible time of it. The shared view was that the existence
of the convention requiring that any amendment affecting the legislative
powers of the provinces had to be accompanied by the consent of the
affected provinces was not only inarguable, it was critical to the very notion
of Canada’s federalism.
At the close of the colloquium, I emerged into the sunlight and started
walking back to the train station. A gentleman walking beside me introduced
himself. It was Professor Wade. I suppose he had had enough of the
Constitution because he said to me, “Have you ever seen the herb garden?”
I replied that I had not. He insisted that I could not leave Oxford without
seeing the herb garden, and offered to take me there. We spent an hour in
the garden, and I can assure you that his horticultural knowledge was just
as encyclopedic as his knowledge of the Constitution.
A CANADIAN SOLUTION
On September 28, 1981, the Supreme Court came to their decision in the
Patriation Reference.14 The ruling deemed that Trudeau’s unilateral request
was not illegal, but that a convention did exist requiring the support of a
“substantial number” of provinces. “Substantial” was never clearly defined.
There’s no question in my mind that Margaret Thatcher was no longer
interested in Trudeau’s unilateral request. The cumulative effect of the