Amendments to the Constitution of Canada

Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.

History

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 formulas

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. Amendments can only be passed by the Canadian House of Commons, the Senate, and a two-thirds majority of the provincial legislatures representing at least 50% of the national population (the 7/50 formula). Though not constitutionally mandated, a popular referendum in every province is also considered to be necessary by many, especially following the precedent established by the Charlottetown Accord (see below).

If a constitutional amendment only affects one province, however, only the assent of that province's legislature is required. Eight 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 Nunavut, one for Prince Edward Island, and one for Quebec. Some of the above did also require approval by the federal Parliament under section 43(b) due to the English and French nature of the amendment.

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. These include changes to the composition of the Supreme Court of Canada, changing the process for amending the constitution itself, or any act affecting the Offices of the Canadian Monarch or Governor General.

The Supreme Court of Canada in the amending formula

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.

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 distinct society. Quebec, in particular, has not formally agreed to the Constitution Act, 1982, although this is largely 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).

Past amendments to the Constitution

As mentioned, 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.

*Constitution Amendment, 1983: strengthened Aboriginal rights in the Constitution. This amendment was made using the 7/50 formula.
*Constitution Act, 1985 (Representaton): modified the formula for apportioning seats in the House of Commons.
*Constitution Amendment, 1987 (Newfoundland Act): extended education rights to the Pentecostal Church in Newfoundland (repealed by 1998 Amendment).
*Constitution Amendment, 1993 (New Brunswick): 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.
*Constitution Amendment, 1993 (Prince Edward Island): allowed for a "fixed link" bridge to replace ferrying services to Prince Edward Island.
*Constitution Amendment, 1997 (Newfoundland Act): allowed the Province of Newfoundland to create a secular school system to replace the church-based education system.
*Constitution Amendment, 1997 (Quebec): permitted the Province of Quebec to replace the denominational school boards with ones organized on linguistic lines.
*Constitution Amendment, 1998 (Newfoundland Act): ended denominational quotas for Newfoundland religion classes.
*Constitution Act, 1999 (Nunavut): granted the Territory of Nunavut representation in Parliament.
*Constitution Amendment, 2001 (Newfoundland and Labrador): changed the name of the "Province of Newfoundland" to the "Province of Newfoundland and Labrador".

Failed attempts

See: Unsuccessful attempts to amend the Canadian Constitution