Malcolm Rivera
Canada's Constitution has been criticised for being too difficult to amend. Before 1982, Canada could only change its constitution by requesting an amendment from the British Parliament. Since then, amendments have been made using one of five amending formulas, requiring consent from some combination of the House of Commons, Senate, and provincial legislatures. This has proven challenging, with some arguing that it weakens democracy and undermines the purpose of writtenness. The process is further complicated by the requirement for unanimous consent on certain matters, such as the office of the Monarch or the use of English or French. While a constitution should be able to respond to changing values over time, finding the right balance between flexibility and stability is crucial.
| Characteristics | Values |
|---|---|
| Difficulty in amending the Constitution | The Constitution is very difficult to amend, with some arguing that it is "virtually impossible" to do so. |
| Need for public vote or referendum | Some governments and provinces believe that a referendum is necessary before any constitutional changes can be made. |
| Amending formula | There are five different procedures for amending the Constitution, outlined in sections 38 to 49 of the Constitution Act, 1982. |
| General formula | The standard way to amend the Constitution, requiring approval from the House of Commons, the Senate, and at least seven provinces representing at least 50% of the total population. |
| Unanimity formula | Reserved for matters such as the office of the Monarch, the use of English or French, and the composition of the Supreme Court, requiring unanimous consent from all provinces and the two Houses of Parliament. |
| 7/50 formula | Applies to matters such as the powers and selection of Senators, the representation of provinces in the House of Commons, and the extension of provinces into territories, requiring the approval of seven provinces representing at least 50% of the population. |
| Section 43 | Allows for amendments affecting a single province or multiple but not all provinces, requiring the assent of the two Houses of Parliament and the legislative assembly of the province(s) in question. |
| Section 44 | Allows for unilateral amendments by the Parliament of Canada regarding federal institutions, unless the matters are reserved for unanimity or 7/50 formula. |
| Section 45 | Grants each province the power to modify its own constitution, provided the changes do not concern matters outlined in Section 41. |
| Historical context | Before 1982, Canada had to request amendments from the British Parliament. The Constitution Act, 1982, granted Canada full sovereignty over its Constitution. |
Explore related products
$9.99 $9.99
![Canada Land Amendment Association [microform]: Prospectus and Constitution Together With Some Remarks on the Present System of Land Transfer in ... With Suggestions for the Amendment Of...](https://m.media-amazon.com/images/I/61GRtlDGLqL._AC_UY218_.jpg)
What You'll Learn
The Charlottetown Accord of 1992
Canada's Constitution is difficult to amend, and the process of doing so is complex. Between 1931 and 1982, Canada could only amend its Constitution by requesting that the British Parliament do so. This was achieved through the Constitution Act, 1982, which allowed Canada to repatriate its constitution and achieve full sovereignty.
Since then, amendments have been made using one of five amending formulas, which require the consent of some combination of the House of Commons, Senate, and provincial legislatures. The general formula, also known as the 7/50 rule, requires the approval of the House of Commons, the Senate, and at least seven provinces, representing at least 50% of the population of all provinces combined.
Some matters are so important that they can only be changed with the unanimous consent of all provinces and the two Houses of Parliament. This includes changing the role of the monarch, the use of English or French in Canada, and amending procedures.
The Accord was the result of negotiations between the federal, provincial, and territorial governments, as well as representatives from Indigenous groups. It was unveiled in Charlottetown, Prince Edward Island, on August 28, 1992, and was submitted to a national referendum on October 26, 1992. The referendum asked Canadians whether they agreed that the Constitution of Canada should be renewed based on the Charlottetown Accord. Despite receiving approval from some provinces, the Accord was ultimately rejected by 54.3% of voters nationally.
The failure of the Charlottetown Accord can be attributed to various factors, including the unpopularity of Prime Minister Mulroney and the perception that he made several mistakes during the referendum campaign. Additionally, the Accord faced opposition from some provinces, such as Alberta and British Columbia, which argued that it would cement Canada's power base in the Quebec-Ontario bloc at their expense. The rejection of the Accord by Canadian voters highlighted the challenges and complexities of amending Canada's Constitution.
Memorize the Amendments: Strategies for Success
You may want to see also
The role of the Monarch
Canada's constitution is difficult to amend, and this has raised questions about whether it weakens democracy and undermines the purpose of written constitutions. Before 1982, Canada could only change its constitution by requesting an amendment from the British Parliament. With the Constitution Act of 1982, Canada took over the authority to amend its constitution, achieving full sovereignty.
The Canadian constitution is a codified constitution, which means it is a single document or set of documents that outline the country's fundamental principles of governance and the roles and responsibilities of the monarch, governor general, and lieutenant governor of a province. The monarch, currently King Charles III, is the head of state and serves as a symbol of Canada's constitutional monarchy. The monarch's role is largely ceremonial and includes functions such as representing Canada internationally, providing stability and continuity, and promoting national unity. The monarch is also involved in the amendment process of the constitution.
Any changes to the role of the monarch or the governor general require the unanimous consent of all the provinces plus the two Houses of Parliament, according to Section 41 of the Constitution Act, 1982, known as the "unanimity formula." This ensures that any modifications to the monarch's position or powers are carefully considered and agreed upon by all provinces and the federal government. The monarch is not directly involved in the day-to-day legislative process but plays a role in ensuring the stability and continuity of Canada's constitutional framework.
The monarch's role in the amendment process is primarily ceremonial, and they do not have a direct say in the specific changes being proposed. However, their position and powers are outlined in the constitution, and any modifications to those would require a high threshold of approval, reflecting the importance placed on the role of the monarch in Canada's constitutional monarchy. The unanimous consent requirement for changes related to the monarch demonstrates the significance and respect accorded to the position within Canada's constitutional framework.
Expanding the Right to Vote: Constitutional Amendments
You may want to see also
The 7/50 rule
Canada's Constitution is considered difficult to amend due to the complexity of the procedure. Before 1982, Canada could only change its Constitution by requesting an amendment from the British Parliament. However, with the Constitution Act, 1982, Canada gained full sovereignty and established a general amendment procedure, often referred to as the "7/50 rule" or "7/50 formula."
While the 7/50 rule provides a structured process for amending certain aspects of the Constitution, the overall complexity of the amendment process in Canada has been a topic of great debate, with some arguing for a more accessible approach to reflect changing values and demands from the provinces.
Understanding Initiated Constitutional Amendment
You may want to see also
Explore related products
Provincial jurisdiction
Canada has a federal system of government, with jurisdiction divided between the federal government and the various provinces. The Constitution Act of 1867 outlines the division of responsibilities between the federal Parliament and the provincial legislatures. The federal Parliament has jurisdiction over matters of national interest, such as trade between provinces, national defence, criminal law, money, patents, and the postal service. On the other hand, the provincial legislatures have jurisdiction over matters of a local nature, such as education, health care, social welfare, and highways. There is also some overlap between these two levels of government, known as areas of concurrent jurisdiction, where both levels of government can pass laws. These include taxation, agriculture, old-age pensions, and natural resource extraction.
The Constitution Act, 1982, further outlines the distribution of legislative powers in Canada. It includes the amending formula, which comprises a series of procedures for changing different aspects of constitutional law. The general formula requires approval from the House of Commons, the Senate, and a minimum number of provincial legislatures, with at least seven provinces representing at least 50% of the total population. This is often referred to as the 7/50 rule. Certain matters, such as changing the role of the monarch or amending procedures, require unanimous consent from all provinces and the two Houses of Parliament, as outlined in Section 41 of the Constitution Act, 1982.
The process of amending the constitution in relation to provincial jurisdiction can be complex. For amendments affecting a single province, only the assent of the two Houses of Parliament and the province's legislative assembly is required. However, for amendments impacting multiple provinces, the resolution must be authorised by the Senate, House of Commons, and the legislative assembly of each affected province. Furthermore, some provinces, such as Alberta and BC, have passed laws requiring a referendum before approving any constitutional changes.
The Equal Rights Amendment: A Constitutional Quest
You may want to see also
Democracy and the purpose of writtenness
Canada's Constitution is difficult to amend, and this has raised questions about whether it undermines democracy and the purpose of writtenness. The Constitution should be able to respond and adapt to changing values and times, and striking the right balance between stability and flexibility is essential.
Canada's Constitution-making process in 1981-82 aimed to achieve this balance. Before 1982, Canada relied on the British Parliament to amend its Constitution. The Constitution Act of 1982, however, enabled Canada to repatriate its Constitution and establish full sovereignty over constitutional amendments. This Act outlines five different amending formulas, with the general formula requiring approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures, representing at least 50% of the total provincial population.
The difficulty in amending Canada's Constitution is further compounded by the requirement for unanimous consent from all provinces and the two Houses of Parliament on specific matters, such as the office of the Monarch or the use of English and French languages. Additionally, certain provinces have passed laws mandating a referendum before approving constitutional changes, and the federal government has its own set of requirements for proposing amendments. These factors collectively contribute to the complexity and challenge of amending Canada's Constitution.
The purpose of a written constitution is to provide a clear framework for governance, outline the rights and responsibilities of citizens and the state, and establish the rules and procedures for amending it. A written constitution is meant to be a living document that can adapt to the evolving needs and values of a country while maintaining stability and continuity. However, if the constitution is too difficult to amend, it may hinder the country's ability to address contemporary issues and reflect the will of the people, potentially undermining the very principles of democracy and the purpose of having a written constitution.
The Ninth Amendment: Protecting Our Unmentioned Personal Rights
You may want to see also
Frequently asked questions
The process of amending Canada's Constitution is outlined in the Constitution Act, 1982, which includes five different procedures or formulas for changing different aspects of constitutional law. The general formula requires approval from the House of Commons, the Senate, and a minimum of seven provincial legislatures, representing at least 50% of the total provincial population. Certain matters, such as those related to the office of the Monarch or the use of official languages, require unanimous consent from all provinces and the two Houses of Parliament. Amendments are formalized through a proclamation issued by the Governor General in Council.
Amending Canada's Constitution is a complex and challenging process due to the requirement of consensus from multiple levels of government. The need for approval from a significant number of provincial legislatures, in addition to the House of Commons and the Senate, can lead to prolonged debates and negotiations. Additionally, some matters require unanimous consent, making it even more challenging to achieve the necessary agreement.
The difficulty in amending Canada's Constitution has led to debates about the balance between stability and adaptability. While a constitution should reflect changing values and societal needs, the high bar for amendments can make it challenging to adapt the document to contemporary contexts. This complexity has resulted in a limited number of successful amendments since 1982. Additionally, the difficulty of amending the Constitution has prompted discussions about the potential need for a referendum or public vote on significant constitutional changes.
