Amendments to the Constitution of Canada
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: instead changes were enacted through Acts of the Parliament of the United Kingdom (or "Imperial Parliament") called the British North America Acts.
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Other Commonwealth countries had taken over the authority for constitutional amendment after the Statute of Westminster 1931, but at the time, Canada decided to allow the Parliament of the United Kingdom to "temporarily" retain the power. With the Constitution Act 1982, Canada took over the authority to amend its own constitution, achieving full sovereignty.[1][2][3]
Between 1931 and 1982, the federal government, on behalf of the House of Commons of Canada and the Senate, would issue an address to the British government requesting an amendment. The request would include a resolution containing the desired amendments. These, in turn, were always passed by the British Parliament, with little or no debate.
Amendment formula
Demographic weight of every Provinces (2016)
As part of the patriation of the Constitution in 1982 an amending formula was adopted in sections 38 to 49 of the Constitution Act, 1982.[4]
Most amendments can be passed only if identical resolutions are adopted by the House of Commons, the Senate and two-thirds or more of the provincial legislative assemblies representing at least 50 per cent of the national population. This formula, which is outlined in section 38 of the Constitution Act, 1982, is officially referred to as the "general amendment procedure" and is known colloquially as the "7+50 formula".
Once the procedure for the adoption of the amendment is followed successfully, the amendment is formalized as a proclamation of the Governor General in Council. Officially, therefore, the Constitution is amended by Proclamation, and the issue of the Proclamation requires prior approval by resolutions of the House of Commons, the Senate, and the necessary number of provincial legislative assemblies.
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 affects only one province, however, only the assent of Parliament and of that province's legislature is required. Seven of the eleven amendments passed so far have been of this nature, four being passed by and for Newfoundland and Labrador, one 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 be modified only with the unanimous consent of all the provinces plus the two Houses of Parliament. 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.
| 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 |
|
| 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 from 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 by reasonable compensation by Canada to the provinces.
Supreme Court of Canada in the amending formula
There has been a 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, thus 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) as a set of thirty instruments that does not include the Supreme Court Act. Some scholars, including Peter Hogg, have suggested that the references to the Supreme Court of Canada in sections 41 and 42 are ineffective. They argue that these references are "anticipatory" and will become effective only if Parliament adds the Supreme Court Act to the list in s. 52(2). Other 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 introduce the list of thirty instruments, 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 is included in the Constitution of Canada.
This issue has 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 Stephen Harper has announced that a new reformed selection process will be developed. If the new process binds the federal government, it will 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 can 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, this change would require a constitutional amendment. 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 ruled that clauses concerning the appointment of Justices from Quebec are entrenched.[5]
Debate
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 a distinct society. Quebec, in particular, has not formally agreed to the Constitution Act, 1982, although this 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 per cent 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 address Quebec's objections to the Constitution Act, 1982, 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).[6]
Pre-1982 amendments to the Constitution
In addition to the amendment 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.
| 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 | 91(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, 1951 | 94A |
| British North America Act, 1952 | 51 |
| Constitution Act, 1960 | 99 |
| 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
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 eleven minor amendments to the Constitution since it was patriated in 1982. Most of these amendments have been limited in scope, dealing only with matters affecting specific provinces.
| 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. |  |
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| 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. |
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| 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). |
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| 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. | |
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| 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. | |
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| 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. | |
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| Constitutional Amendment, 1997 (Quebec) | §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." |
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| Constitution Amendment, 1998 (Newfoundland Act) | term 17 of schedule to Newfoundland Act | Ended denominational quotas for Newfoundland religion classes. | |
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| 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.[7] |
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| Constitution Amendment, 2001 (Newfoundland and Labrador) | every instance of the word "Newfoundland" in the schedule to Newfoundland Act | Changed the name of the "Province of Newfoundland" to the "Province of Newfoundland and Labrador". | |
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| Fair Representation Act, 2011 | §51(1)–(1.1) of Constitution Act, 1867 | Modified the formula for apportioning seats in the House of Commons. | |
Post-1982 failed attempts
Attempts to enact major amendments:
- The Meech Lake Accord.
- The Charlottetown Accord.
Temporary alternative to amendment
Various provisions of the Canadian Constitution are subject to the notwithstanding clause, which is Section Thirty-three of the Canadian Charter of Rights and Freedoms. This section authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, although provincial governments have done so.[8]
The notwithstanding clause was invoked routinely, between 1982 and 1985, by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,[9] respectively. (Note that Alberta's use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction.)[10] The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.[11] In 2018, Ontario's provincial government threatened to invoke the Notwithstanding Clause after legislation changing the size of Toronto's city council was ruled unconstitutional by a judge, but the invocation was dropped after Ontario's Court of Appeal ruled the legislative change was "unfair" but "not unconstitutional."[12]
References
- "Proclamation of the Constitution Act, 1982". Canada.ca. Government of Canada. 5 May 2014. Retrieved 10 February 2017.
- "A statute worth 75 cheers". The Globe and Mail. Toronto. 17 March 2009. Retrieved 10 February 2017.
- Couture, Christa (1 January 2017). "Canada is celebrating 150 years of… what, exactly?". CBC. CBC. Retrieved 10 February 2017.
... the Constitution Act itself cleaned up a bit of unfinished business from the Statute of Westminster in 1931, in which Britain granted each of the Dominions full legal autonomy if they chose to accept it. All but one Dominion – that would be us, Canada – chose to accept every resolution. Our leaders couldn't decide on how to amend the Constitution, so that power stayed with Britain until 1982.
- "Part V – Procedure for Amending Constitution of Canada, Constitution Act, 1982". Department of Justice, Canada. Retrieved 8 February 2013.
- http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13544/index.do
- "Gomery Inquiry: Jean Chrétien: a former PM testifies". CBC News. 8 February 2005. Retrieved 18 March 2012.
- Preston Manning, Leader of the Opposition (20 April 1998). "Government Orders: Nunavut Act". Parliamentary Debates (Hansard). Canada: House of Commons.at 3:15 pm.
- Heather Scoffield, "Ottawa rules out invoking notwithstanding clause to stop migrant ships," Canadian Press, 13 September 2010
- Marriage Act Archived 13 January 2007 at the Wayback Machine, R.S.A. 2000, c. M-5. Accessed URL on 10 March 2006.
- McKnight, Peter. "Notwithstanding what?" The Vancouver Sun, 21 January 2006, pg. C.4.
- Library of Parliament, Parliamentary Information and Research Service, The Notwithstanding Clause of the Charter Archived 15 November 2006 at the Wayback Machine, prepared by David Johansen, 1989, as revised May 2005. Retrieved 7 August 2006.
- https://www.canadianlawyermag.com/author/shannon-kari/the-charter-under-assault-16654/
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