Isabella Carter
The Canadian Constitution has been amended several times since 1982, evolving constantly and following the amendment procedure set out in the Constitution Act, 1982. The Constitution Act, 1867, long known as the British North America Act, provides for the federal union of Canada's original four provinces. The Constitution Act, 1982, stipulates that the legislative texts and orders referred to in its schedule are also part of Canada's constitution. The amending formula, comprising a series of procedures listed in sections 38 to 49 of the Constitution Act, 1982, outlines five different ways to change different aspects of constitutional law in Canada. The general procedure, or 7/50 rule, requires approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the total population.
| Characteristics | Values |
|---|---|
| Number of amending procedures | 5 |
| General procedure | Standard way to change the Constitution |
| General procedure requirements | Approval by the House of Commons, the Senate, and a minimum of seven provincial legislatures representing at least 50% of the population |
| Unanimity procedure | Requires approval from all provincial governments and the federal government |
| Unanimity procedure requirements | Changes to the role of the King or Queen, use of English or French in Canada, or amending procedures themselves |
| Amendments since 1982 | 13 |
| Scope of amendments | Limited, dealing with matters affecting specific provinces |
| Examples of amendments | Provincial schooling in Newfoundland and Quebec, change of Newfoundland's name to Newfoundland and Labrador, relief of ferry service obligation to Prince Edward Island |
| Amending formula | Sections 38 to 49 of the Constitution Act, 1982 |
| Constitutional provisions concerning federal institutions | Can be amended unilaterally by the Parliament of Canada if not reserved for unanimity or 7/50 formula |
| Provincial constitutions | Each province has the power to modify its own constitution, except for matters outlined in Section 41 |
| Senate term limits | Arguably can be instituted unilaterally by the federal government |
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What You'll Learn
Amendments to the Constitution Act, 1867
The Constitution Act, 1867 (originally enacted as the British North America Act, 1867) is a major part of the Constitution of Canada. The act created a federal dominion and defines the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system.
The Constitution Act, 1867, was amended in 1982 when, with the patriation of the Constitution, the British North America Acts were renamed. Section 92A was added, giving provinces greater control over non-renewable natural resources.
The Canadian government used the amendment method outlined in Section 44 of the Constitution to modify the House of Commons seat allocation formula in 2022. This section states that constitutional provisions concerning federal institutions (executive government of Canada, Senate, and House of Commons) can be amended unilaterally by the Parliament of Canada if the provisions are not those explicitly reserved for unanimity or the 7/50 formula.
The general formula for amending the Constitution of Canada requires approval from the House of Commons, the Senate, and a minimum number of provincial legislatures. There must be at least seven provinces that approve the change, representing at least 50% of the population of all the provinces combined. This is often referred to as the 7/50 rule.
In summary, amendments to the Constitution Act, 1867, have been made through a combination of acts of the United Kingdom or Canadian parliaments, the addition of documents to the constitution, and by following the general formula for amending the Constitution of Canada as outlined in Section 44.
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Amendments to the Constitution Act, 1982
The Constitution Act, 1982, outlines the procedures for amending the Canadian Constitution. The Act provides a general amending procedure, also known as the 7/50 formula, which requires the assent of at least two-thirds (7) of the provinces representing at least 50% of the Canadian population. This procedure applies to changes related to federal institutions such as the executive government, the Senate, and the House of Commons.
The 7/50 formula ensures that larger provinces typically need to approve amendments, but it also requires support from smaller provinces. Certain matters require unanimous consent from all provincial and federal governments, such as changes to the role of the monarch, language rights, or amending procedures themselves.
The Constitution Act, 1982, also recognises the authority of provincial governments in amending their own constitutions, as long as the changes do not conflict with matters outlined in the Act. For instance, the Parliament of Quebec routinely invoked the notwithstanding clause (Section 33 of the Canadian Charter of Rights and Freedoms) between 1982 and 1985 to override certain rights and freedoms.
Since the patriation of the Constitution in 1982, there have been several amendments, most of which have been limited in scope, addressing specific provincial issues. Notable examples include amendments related to schooling in Newfoundland and Quebec, the changing of the province's name to Newfoundland and Labrador, and the relief of ferry service obligations to Prince Edward Island upon the completion of the Confederation Bridge.
While there have been attempts at comprehensive constitutional reform, such as the Meech Lake Accord (1987-1990) and the Charlottetown Accord (1992), they failed to receive ratification from all provincial governments. The amending procedures do not require direct approval by the people of Canada, but some provinces like Alberta and British Columbia have passed laws mandating a referendum for constitutional changes.
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Provincial amendments
Amending the Canadian Constitution is a complex and much-debated topic. Before 1982, the Constitution was amended by the British Parliament, which had retained the power to make changes to the British North America Act, 1867 (now the Constitution Act, 1867). After 1982, the Canadian government gained more control over the process, but it still remains challenging.
> "Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province."
This means that each province has the power to amend its own constitution, without requiring approval from the federal government or other provinces. However, this process is not without controversy, as seen in the case of Quebec's attempts to amend its provincial constitution.
Quebec has sought to amend its constitution to address its status as a distinct society, including recognizing Quebecers as a nation and French as the official language. While the federal government has been supportive of these changes, legal experts disagree on whether Quebec can validly use Section 45 to make these amendments. The Supreme Court of Canada has not yet ruled on the matter, leaving uncertainty around the process.
The use of Section 45 to amend provincial constitutions is a divisive issue in Canada. While a majority of Quebecers support the right of provinces to unilaterally amend their constitutions, a similar majority of Canadians outside Quebec reject the proposal. This division highlights the complexity and sensitivity of amending the Canadian Constitution, especially when it comes to addressing the unique demands and characteristics of individual provinces.
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Unanimous approval
Unanimity procedure is one of the five different procedures for amending the Canadian Constitution. It is one of the more arduous amending procedures, and there has been little use of it so far.
The unanimity procedure requires the approval of all provincial governments and the federal government. This is outlined in Section 41 of the Constitution Act, 1982, which describes the types of changes that need unanimous agreement from all governments. These include changes to the role of the monarch, changes to the use of English or French in Canada, or changes to the amending procedures themselves.
To amend the Canadian Constitution using the unanimity procedure, the following steps are required:
- The proposed amendment is introduced and debated in the House of Commons, the Senate, and the legislative assemblies of each province.
- Each province's legislative assembly, the Senate, and the House of Commons vote on the proposed amendment.
- For the amendment to succeed, it must receive the approval of all provincial governments and the federal government, with no dissent.
- If the amendment is approved by all provinces and the federal government, it is then presented to the Governor General, who issues a proclamation to formalize the change.
It is important to note that the unanimity procedure is distinct from the general procedure, which requires approval from a minimum of seven provinces representing at least 50% of the population, often referred to as the 7/50 rule. The general procedure is the standard way to amend the Constitution and has been used more frequently than the unanimity procedure.
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General approval
The Canadian Constitution has been amended several times since it was patriated in 1982. The Constitution Act of 1982 sets out the amending formula, which includes the general procedure for making changes. The general procedure is the standard way to amend the Constitution.
To amend the Canadian Constitution using the general formula, the change must be approved by the House of Commons, the Senate, and a minimum number of provincial legislatures. At least seven provinces, representing at least 50% of the total population of all the provinces, must approve the change. This is often referred to as the 7/50 rule. This means that provinces with larger populations typically need to approve a change for the amendment to be successful. However, the support of provinces with smaller populations is also necessary.
The 7/50 rule does not specify which provinces must be included in the two-thirds majority. This allows for flexibility in the amending process, as different combinations of provinces can achieve the required population threshold. It is important to note that some matters are considered so significant that they require the unanimous consent of all provincial and federal governments. These matters include changing the role of the monarch, altering the use of English or French in Canada, or modifying the amending procedures themselves.
The general formula for amending the Canadian Constitution has been successfully used on rare occasions. For example, in 1983, the general formula was used to make additions to the Aboriginal rights section of the Constitution. This amendment, known as the Constitution Amendment Proclamation, 1983, was a multilateral amendment under the 7/50 formula. It addressed Aboriginal rights and was the first multilateral amendment to the Constitution.
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Frequently asked questions
The Canadian Constitution can be amended by following the general procedure, which requires approval from the House of Commons, the Senate, and at least seven provincial legislatures representing at least 50% of the total population. This is often referred to as the 7/50 rule.
There have been several amendments to the Canadian Constitution since 1982. Some notable examples include the 1994 amendment that relieved Canada of the obligation to provide ferry services to Prince Edward Island, the 1997 amendment that allowed Quebec school boards to be restructured on linguistic lines, and the 2001 amendment that changed the name of the province of Newfoundland to Newfoundland and Labrador.
There are five different procedures for amending the Canadian Constitution, outlined in sections 38 to 49 of the Constitution Act, 1982. The general procedure is the standard method, while other procedures include the unanimity procedure and the 7/50 formula, which requires the assent of at least two-thirds of the provinces representing at least 50% of the population.
Amending the Canadian Constitution has been a topic of debate, with some failed attempts such as the Meech Lake Accord (1987-1990) and the Charlottetown Accord (1992). Some argue that a public vote or referendum should be required for constitutional changes. Additionally, there are regional vetoes held by certain provinces, which can complicate the amendment process.
