Amendments to the Constitution of Canada

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Amendments to the Constitution of Canada are changes to the Constitution of Canada that are initiated and carried through or rejected by the Canadian parliament. The first official protocol for this process was established in 1982.

History[edit]

Before 1982, modifying the Constitution of Canada primarily meant amending the British North America Act, 1867. Unlike most constitutions, however, this Act had no amending formula; thus changes were enacted through acts of the Parliament of the United Kingdom (or "Imperial Parliament"), the British North America Acts. To make an amendment the federal government, on behalf of the Canadian House of Commons and the Senate, would issue an address to the UK government requesting an amendment and would include a resolution containing the desired amendments. These in turn, always passed with minimal debate from British politicians.

Amendment formula[edit]

Since the patriation of the Constitution in 1982, a more complete amending formula has been adopted in the Constitution Act, 1982, in sections 38 to 49.[1]

Most amendments can be passed only if identical resolutions are adopted by the House of Commons, the Senate, and a two-thirds majority of the provincial legislative assemblies representing at least 50% of the national population. This formula, which is outlined in section 38 of the Constitution Act, 1982, is sometimes referred to as the "general amendment procedure" and is known more colloquially as the "7+50 formula." The following matters are reserved to the s. 38 procedure, by virtue of s. 42:

(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) the establishment of new provinces.

If a constitutional amendment only affects one province, however, only the assent of Parliament and of that province's legislature is required. Seven of the ten amendments passed so far have been of this nature, with four passed by and for Newfoundland and Labrador, one passed for New Brunswick, one for Prince Edward Island, and one for Quebec. This formula is contained in section 43 of the Constitution Act, 1982.

There are some parts of the Constitution that can only be modified by a unanimous vote of all the provinces plus the two Houses of Parliament, however. This formula is contained in section 41 of the Constitution Act, 1982, and is known as the "unanimity formula." It is reserved for the following matters:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time the Constitution Act, 1982 came into force;
(c) subject to section 43, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) changing the amendment procedure itself.


Type of amending procedure - Part V of the Constitution Act, 1982
Section Description Subject to Notes
s. 38 Resolutions of the Senate and House of Commons and of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. ss. 39–40
  • Such amendments do not apply to a province whose legislature has passed a resolution of dissent.
  • S. 42 lists matters that may only be executed under s. 38 (but where the dissent procedure does not apply).
s. 41 Resolutions of the Senate and House of Commons and of the legislative assembly of each province. With respect to matters listed in that section.
s. 43 Resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
s. 44 Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. ss. 41–42
s. 45 The legislature of each province may exclusively make laws amending the constitution of the province. s. 41
s. 47 An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within 180 days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution. Any period when Parliament is prorogued or dissolved shall not be counted in computing the 180-day period.

No specific mention is made in the procedure for amendments affecting what falls within the federal/provincial distribution of powers. Therefore, they can be dealt with generally under s. 38, or with respect to specific provinces under s. 43. However, a s. 38 amendment in that regard will not apply to a province that has passed a resolution of dissent to it, and s. 40 states that a s. 38 amendment that transfers provincial jurisdiction over an education or cultural matter to Parliament must be accompanied with reasonable compensation by Canada to the provinces.

Though not constitutionally mandated, a popular referendum in every province is also considered to be constitutional convention, especially following the precedent established by the Charlottetown Accord (see below).

Supreme Court of Canada in the amending formula[edit]

There is an ongoing debate among legal scholars as to whether the Supreme Court of Canada is entrenched in the Constitution of Canada. The Supreme Court of Canada was not created by the constitution, rather the power to create a "Court of General Appeal for Canada" was granted to Parliament by s. 101 of the British North America Act, 1867. Parliament proceeded to create the Supreme Court of Canada under the authority of s. 101 in 1875 by passing the Supreme Court Act, which was an ordinary piece of legislation with no constitutional significance at the time.

The Supreme Court of Canada was mentioned for the first time in a constitutional document by the Constitution Act, 1982. The Supreme Court is referred to twice. First, s. 41 lists several amendments to the Constitution of Canada requiring unanimous consent. S. 41(d) includes the "composition of the Supreme Court of Canada" in this list. Second, s. 42(1) lists several amendments to the Constitution of Canada requiring the general amendment procedure. S. 42(1)(d) includes "subject to s. 41(d), the Supreme Court of Canada" in this list.

Sections 41 and 42 of the Constitution Act, 1982 would appear to include the Supreme Court of Canada in the Constitution of Canada. However, this conclusion is questionable because the "Constitution of Canada" is expressly defined in s. 52(2). S. 52(2) lists thirty instruments that comprise the Constitution of Canada but it does not include the Supreme Court Act.

Some scholars, including Peter Hogg, have suggested that references to the Supreme Court of Canada in sections 41 and 42 are ineffective. They argue that these references are 'anticipatory' and will only become effective if Parliament adds the Supreme Court Act to the list in s. 52(2).

Others scholars, including Professor Cheffins, have argued that the Supreme Court Act is implied as entrenched into s. 52(2) because of sections 41 and 42. S. 52(2) uses the words "includes..." to define the Constitution of Canada, suggesting that the provision does not contain an exhaustive list.

The Supreme Court itself has confirmed in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 that s. 52(2) is not exhaustive but has not yet ruled on whether the Supreme Court Act itself is included.

This issue has important implications for judicial selection in Canada. S. 4(2) of the Supreme Court Act specifies that the Governor in Council (federal cabinet) has the power to appoint judges to the Supreme Court. Prime Minister Harper has announced that a new reformed selection process will be developed. If the new process will bind the federal government, it would necessarily involve an amendment to s. 4(2) of the Supreme Court Act. If the Act is constitutionalized, this would require a constitutional amendment under the general amendment procedure -- a significant hurdle requiring provincial cooperation. If the Act is not constitutionalized, Parliament could simply amend the legislation by a majority vote.

This issue arose again in connection with private member's Bill C-232, passed by the House of Commons in March, 2010. The bill would have amended the Supreme Court Act to require all future appointees to the court to be able to understand both French and English without the assistance of an interpreter. If the Supreme Court Act is considered part of the constitution, these changes would have required a constitutional amendment but Bill C-323 died on the table when parliament was dissolved for the May election.

In Reference re Supreme Court Act, ss. 5 and 6 2014 SCC 21, a majority of the Supreme Court rule that clauses around the appointment of Justices from Quebec are entrenched[2]

Debate[edit]

Amending the Canadian Constitution is a topic of great debate in Canada. There seems to be general agreement among provincial governments that some parts of the Constitution need to be amended to deal with long-standing demands from many provinces. There are demands by western provinces for a greater share of power at the federal level, and demands from Quebec for greater protection for its status as distinct society. Quebec, in particular, has not formally agreed to the Constitution Act, 1982, although this is symbolic and does not affect the legal applicability of the Act.

Nevertheless, agreement on details of amendments has been elusive. Further complicating attempts to amend the Constitution is the complexity of the procedure for doing so, which in most cases requires approval from both the federal parliament and two-thirds of the provincial governments representing at least 50% of the population, and in some cases require the approval of the federal government and all ten provincial governments.

The 1987 Meech Lake Accord, a package of constitutional amendments, intended to deal with long-standing concerns of western provinces and demands from the Province of Quebec, failed in 1990 when it was not ratified by all ten provincial governments. The last attempt at a comprehensive package of constitutional amendments was the Charlottetown Accord, which arose out of the failure of the Meech Lake Accord. The Charlottetown Accord was defeated in a national referendum in 1992.

There have been several relatively minor amendments to the Constitution since it was patriated in 1982 including amendments dealing with provincial schooling in Newfoundland and Quebec and the changing of the name of Newfoundland to Newfoundland and Labrador (see below).

Although the amending formula has not been formally altered, the Canadian government under Prime Minister Jean Chrétien after the 1995 Quebec referendum recognized regional vetoes over proposed amendments, held by the provinces of Ontario, Quebec and British Columbia, and by the regions the Prairies (Alberta, Saskatchewan and Manitoba) and the Atlantic (New Brunswick, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island). [3]

Pre-1982 amendments to the Constitution[edit]

In addition to the amendments listed in the following table, many important changes were made to the constitutional structure of Canada by adding entire extra documents to the Constitution. These include orders that added provinces to Canada, such as the British Columbia Terms of Union and documents that altered the structure of the government of Canada, such as the Parliament of Canada Act, 1875. For a complete list of documents added to the Constitution before 1982, see List of Canadian constitutional documents.

List of amendments to the Constitution Act, 1867 prior to 1982
Name Section(s) amended
Manitoba Act, 1870 21
British Columbia Terms of Union 21
36 Vict, c 16 (NB) 124
Parliament of Canada Act, 1875 18
Statute Law Revision Act, 1893 enacting clause, 2, 4, 25, 42, 43, 51, 81, 88, 89, 127, 145
Alberta Act 21
Saskatchewan Act 21
Constitution Act, 1915 21, 22, 26, 27, 28, 51A
Constitution Act, 1940 92(2A)
British North America Act, 1943 51
British North America Act, 1946 51
Newfoundland Act 21, 22
British North America (No. 2) Act, 1949 91
Statute Law Revision Act, 1950 118
British North America Act, 1952 51
Constitution Act, 1960 1960
Constitution Act, 1964 94(A)
Constitution Act, 1965 29
Constitution Act, 1974 51(1)
Constitution Act (No. 1), 1975 51(2)
Constitution Act (No. 2), 1975 21, 22, 28
Constitution Act, 1982 1, 20, 51, 91(1), 92(1), 92A(6), 94A, Sixth Schedule

Post-1982 amendments to the Constitution[edit]

Amending the Constitution has been a topic of much debate in contemporary Canada, and the two most comprehensive attempts to revise the document have both been defeated. There have, however, been ten minor amendments to the Constitution since it was patriated in 1982.

Most of these amendments have been limited in scope, dealing with only specific provinces, and thus not subject to national debate. None have been subjected to a national referendum.

List of amendments to the Constitution of Canada, by type of amending procedure
Name Section(s) amended Purpose and Notes §38 §43 §44 §47
Constitution Amendment Proclamation, 1983 §§25(b), 35(3)-(4), 35.1, 37.1, 54.1, and 61 of Constitution Act, 1982 Strengthened Aboriginal rights in the Constitution. Yes
Constitution Act, 1985 (Representation) §51(1) of Constitution Act, 1867 Modified the formula for apportioning seats in the House of Commons.

Amendment was replaced by Fair Representation Act in 2011.

Yes
Constitution Amendment, 1987 §3 of Newfoundland Act and term 17 of schedule to that Act Extended education rights to the Pentecostal Church in Newfoundland.

Replaced by Constitution Amendment, 1998 (Newfoundland Act).

Yes
Constitution Amendment, 1993 (New Brunswick) §16.1 of Constitution Act, 1982 Added Section 16.1 to the Canadian Charter of Rights and Freedoms, which made the English and French linguistic communities in New Brunswick equal, with the right to distinct cultural and educational institutions. Yes
Constitution Amendment, 1993 (Prince Edward Island) schedule to Prince Edward Island Terms of Union Allowed for a fixed link bridge to replace ferry services to Prince Edward Island. Yes
Constitution Amendment, 1997 (Newfoundland Act) term 17 of schedule to Newfoundland Act Allowed the Province of Newfoundland to create a secular school system to replace the church-based education system. Yes Yes
Constitutional Amendment, 1997 (Québec) §93A of Constitution Act, 1867 Permitted the Province of Quebec to replace the denominational school boards with ones organized on linguistic lines.

NB: The preamble to the resolution of the Quebec National Assembly adopting the amendment makes no reference to which amending formula is being used, and includes the following statement: "Whereas such amendment in no way constitutes recognition by the National Assembly of the Constitution Act, 1982, which was adopted without its consent."

Yes
Constitution Amendment, 1998 (Newfoundland Act) term 17 of schedule to Newfoundland Act Ended denominational quotas for Newfoundland religion classes. Yes
Constitution Act, 1999 (Nunavut) §§21, 23, 28, and 51(2) of Constitution Act, 1867 Granted the Territory of Nunavut representation in the Senate of Canada.

NB: At the time of the Act’s adoption, Leader of the Opposition Preston Manning argued that both this Act and the Nunavut Act of 1993 ought to have been adopted using a more inclusive amendment formula (probably the 7/50 formula), and that the failure to use the appropriate formula could result in future constitutional difficulties.[4]

Yes
Constitution Amendment, 2001 (Newfoundland and Labrador) every instance of the word "Newfoundland" in schedule to Newfoundland Act Changed the name of the "Province of Newfoundland" to the "Province of Newfoundland and Labrador". Yes
Fair Representation Act, 2011 §51(1)-(1.1) of Constitution Act, 1867 Modified the formula for apportioning seats in the House of Commons. Yes

Post-1982 failed attempts[edit]

Attempts to enact major amendments:

References[edit]

  1. ^ "Part V - Procedure for Amending Constitution of Canada, Constitution Act, 1982". Department of Justice, Canada. Retrieved 8 February 2013. 
  2. ^ http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13544/index.do
  3. ^ "Gomery Inquiry: Jean Chrétien: a former PM testifies". CBC News. 8 February 2005. Retrieved 18 March 2012. 
  4. ^ "20 April 1998". Preston Manning, Leader of the Opposition. Parliamentary Debates (Hansard) (Canada: House of Commons). at 3:15 pm.